Proceedings of the Standing Senate Committee on
Issue 6 - Evidence
OTTAWA, Monday, September 15, 2003
The Standing Senate Committee on Human Rights met this day at 11:35 a.m. to study key legal issues affecting the
subject of on-reserve matrimonial real property on the breakdown of a marriage or common-law relationship and the
policy context in which they are situated.
Senator Shirley Maheu (Chairman) in the Chair.
The Chairman: It is with great pleasure that I welcome you here today and thank those who have travelled to Ottawa
to present briefs before this committee. The committee's proceedings may also be followed on the radio, on television
or on the committee's Web site.
I should like to introduce the members of the committee that are present now. A number of senators with special
interest and expertise in respect of the division of on-reserve matrimonial property will participate in this study. With
us today are Senators Beaudoin, LaPierre, Jaffer, Joyal and Chaput. I am Senator Maheu, Chair of the Human Rights
In June, the committee was authorized by the Senate to begin this important study on key legal issues affecting the
subject of on-reserve matrimonial real property on the breakdown of a marriage or common-law relationship. More
specifically, the committee received a mandate to examine four items: the interplay between provincial and federal laws
in addressing the division of matrimonial property, both personal and real, on-reserve and, in particular, enforcement
of court decisions; the practice of land allotment on-reserve, in particular, with respect to custom land allotment; in a
case of marriage or common-law relationships, the status of spouses and how real property is divided on the
breakdown of the relationship; and possible solutions that would balance individual and community interests.
In the months ahead, the committee will hear from a number of witnesses from various aboriginal groups, including
national, provincial and regional organizations.
Just before the summer break, the Minister of Indian and Northern Affairs, the Honourable Robert Nault,
appeared before the committee. We will also have an opportunity to hear from the departmental officials.
I would like to remind people that they can submit a written opinion on the subject to the committee.
The committee would like to table its final report at the end of December 2003. I think that date is ambitious;
however, we will see how far we have proceeded by the end of December. To fulfil the mandate of the committee,
members have decided to focus more attention on three areas: First Nations under the Indian Act; First Nations under
the First Nations Land Management Act; and First Nations under self-government.
I welcome our first group of witnesses from the Department of Indian and Northern Affairs Canada: Ms. Sandra
Ginnish, Ms. Wendy Cornet, and Mr. Kerry Kipping.
Ms. Ginnish, please proceed.
Ms. Sandra Ginnish, Director General, Treaties, Research, International and Gender Equality Branch, Department of
Indian and Northern Affairs Canada: We truly appreciate the opportunity to speak to this issue before you today. Our
presentation generally follows the outline on pages 2 and 3 of our brief before you.
We will focus on the issues outlined by the committee when this invitation was extended, and that will take
approximately 35 minutes. There should then be ample time for questions from members of the committee.
We will look at several important aspects of the legal landscape relating to on-reserve matrimonial property. All of
these subjects shape the very unique legal situation that exists on reserves and will likely affect the policy decisions that
you will have to grapple with as you study the issue of on-reserve matrimonial real property.
The outline of our presentation is shown on slides two and three of the material before you. I will not go through
this list in detail because we will speak to it as we proceed. Both Ms. Cornet and Mr. Kipping will also speak to a
number of the slides.
On slide four — the introduction — you will see that our starting point is the division of powers between the federal
and provincial governments in respect of matrimonial property. Off-reserve, the provincial/territorial government has
jurisdiction over matrimonial property, both real and personal. On-reserve, however, jurisdiction in regard to
matrimonial property involves interaction between two main heads of power, which are included in the Constitution:
one is provincial, section 92(13); the other is federal, section 91(24).
Slide five outlines other unique aspects of the legal context that we will be taking a look at. One is the way land is
held on-reserve. Mr. Kipping will speak to this issue later in the presentation. A subject that we have not included in
this presentation but one that will form part of your study is financing and legal arrangements for housing on-reserve.
We are in the midst of preparing a paper on housing as it relates to housing policy through our department. We hope
to have that paper available for the committee around the middle of November.
Another fact that you will have to consider in your deliberations is the fact that there are family members with
different relationships to the Indian Act and different rights, both in terms of membership and registration, when we
are looking at a marriage that has broken down. That affects the way matrimonial property is dealt with.
I should like to ask Ms. Cornet to speak to the issue of federal jurisdiction.
Ms. Wendy Cornet, Special Advisor, Department of Indian and Northern Affairs Canada: As you have heard,
provincial jurisdiction over off-reserve matrimonial property flows from section 92(13) of the Constitution Act, 1867,
which refers to property and civil rights in the province. This broad head of power the provinces have supports
legislation respecting property rights, including matrimonial property, wills and estates, family law and many other
Federal jurisdiction under section 91(24) of the Constitution Act, 1867, in relation to Indians and lands reserved for
the Indians has a number of implications for the scope and application of provincial heads of power, such as section
92(13). Most important for our concerns in the area of matrimonial property, section 91(24) establishes exclusive
federal jurisdiction respecting Indian reserve lands. This jurisdiction has been exercised in part through the Indian Act,
which establishes a statutory system of individual land allotment. Mr. Kipping will be going into details of that system
later on in this presentation.
Finally, the fact of federal jurisdiction under section 91(24) means that provincial governments cannot pass
legislation affecting rights and interests in reserve lands. This has a number of important implications for matrimonial
real property issues on-reserve.
It is also important to note with respect to section 91(24) that it does include some matters that would otherwise
come under provincial jurisdiction. To give you some examples, the Indian Act does provide for wills and estates,
which would otherwise be a matter that provincial governments would pass legislation on. Another example would be
that the First Nations Land Management Act does speak to matrimonial real property, and that is an exercise of
section 91(24) jurisdiction.
I will now turn the presentation over to Mr. Kipping.
Mr. Kerry Kipping, Acting Director General, Lands and Environment Branch, Department of Indian and Northern
Affairs Canada: Thank you very much, senators, for hearing us out this morning.
I want to talk briefly about the basic land tenure systems on-reserve, but I will start off in regard to the provincial
system and how it differs from what happens on-reserve.
On the provincial system, fee-simple ownership is a common practice in terms of how lands are held. It is a usual
means of home ownership, and it is regulated by provincial law. It is a holding in which the owner is entitled to the
entire property with the power of disposition during life and descendancy to heirs upon death, and it is unlimited as to
its duration, its disposition and its descendability. In all of these issues, in terms of the land ownership, provincial
jurisdiction applies solely. That means that provincial matrimonial property law applies to this in total, both to real
property and to property in general.
In moving to how issues work on-reserve, the overall process is governed through the Indian Act. Moving to slide
10, on-reserve, the federal Crown holds the underlying title and jurisdiction to lands. There are a number of on-reserve
interests. The most common one used in a lot of First Nations' cases is what we refer to as common or general band
lands. These lands are held in common for the use and benefit of the members, and I will talk a bit more about those in
a moment. As Ms. Cornet indicated earlier, there are processes in the Indian Act which provide for the allotment of
certificates of possession or certificates of occupation, which provide for a more recognized land tenure system in
regards to reserve lands. There are also a number of First Nations across the country who use what is better known as
custom or traditional holdings. I will go through these individually, but those are the three basic types of land systems
recognized at this point in time.
If we move to the Indian Act, it sets out the regime for land administration and any of the allotments — as
previously mentioned, allotments are found in sections 20, 22 and 27 of the Indian Act — and provides the Crown with
the format and the process for which land allotments can be exercised. Crown administration under the Indian Act is
for all allotments on-reserve. We approve the allotments, and the minister has an approval process; we approve the
transfer of the allotments; we approve any estate transfers; the minister is responsible for the approval of any
certificates of possession; and, last but not least, we have a significant role in ensuring that those documents or those
allotments are registered within the Indian Land Registry.
The bottom line is that the federal government has the underlying title to the reserve land — and we go back to the
comment that Ms. Cornet made respecting the division of powers between the provincial, under section 91(13), and the
Indian Act, under section 91(24).
In general, briefly going through the principles, as I said earlier on, common or band lands are held for the use and
benefit of all members — and I am referring to slide 12 here for the senators who are following along — often referred
to as band lands. In these lands there are no individual interests. They are held for the use and benefit of the First
Nations themselves, and the band councils will allot the use and the process under which the land ceases to be common
or general band lands.
In doing so, they either allocate a certificate of possession — and this is on slide 13 — under section 20 of the Indian
Act, which authorizes the allotment of lawful possession of land in a reserve to a band member by the band council and
with the approval of the minister. It is very important to recognize that the issuance of certificates of possession is to
members of the band and band members only. There are no certificates of possession allocated to non-band members
or persons who are not members of that band. Under subsection 22, a certificate of possession can be issued.
Certificates of occupation are similar in the initial process to a certificate of possession, except that the minister may
withhold approval of a certificate of possession and allow only temporary possession of the land itself. Under section
25, if the minister uses his allowance powers, he may issue a certificate of occupation for a period of up to two years.
That certificate of occupation may be extended for a period of an additional two years, at which time either a
certificate of possession will be allocated or the allotment will be terminated.
Slide 15 deals with the issue of customary and traditional allotments. Some First Nations do not use the Indian Act
allotment process as their way of allocating use of the First Nations land. A customary allotment or a holding is band
issued and is the First Nations' permission to use and occupy the land and is given to band member. We do not, as a
federal department, approve or register those interests. They are exclusively the possession of the First Nation
themselves, or the band. It is not a legal interest in the reserve land under the Indian Act, and we do not register any of
those interests. They can only be held by families that are members of the band, and the method of receiving band-
issued permission is not clear. Different First Nations use different ways of allocating custom holdings on-reserve.
In terms of how lands are affected by way of customary allotment, customary allotments are granted by the First
Nations, usually through a band council resolution or by an oral agreement with a band member. That is why I say it is
unclear how all First Nations allocate these interests. Sometimes they are to individuals and sometimes to families.
Band-issued permission to use and occupy is how that allotment is exercised. The land remains common or general
band land. In other words, it remains as common lands to all of the band members. There are no obligations of the
Crown in this matter. We do not register those interests, we do not approve of those, and there is no day-to-day
administration of those interests by the Crown.
I will now ask Ms. Cornet to pick up on the application of provincial laws on reserves and how that flows over into
the next process.
Ms. Cornet: Slide 17 addresses how provincial laws apply on reserves to Indians. The first slide discusses this point
in terms of general legal principles. We know that provincial laws cannot apply to Indian reserve lands of their own
force because of section 91(24). Also, provincial laws of general application can apply to Indians as people, as that is
defined under the Indian Act, and this happens through the application of section 88 of the Indian Act, which provides
for the application of provincial laws of general application to Indians. However, section 88 also provides that where
there is a conflict between Indian Act provisions and those laws of general application of the province the Indian Act
provisions will prevail. That also has implications for matrimonial property.
The next slide gets into the more specific matter of the division of powers and how it affects matrimonial property
and matrimonial real property. We are looking at the results of two Supreme Court of Canada decisions, Derrickson
and Paul. They are two separate cases that were heard together, and the decisions were rendered at the same time in
1966. From these cases, we know that those sections of provincial matrimonial property laws affecting real property
cannot be applied to Indian reserve lands. These cases also determined, however, that provincial laws with respect to
the division of the total package of matrimonial property, taking real property and personal property together, can be
applied to Indians on reserve.
I will remind the committee of the legal distinction that is drawn between personal and real property. Matrimonial
personal property is that property belonging to the family that is moveable, such as a car, money, cash in the bank,
furniture, that kind of thing. Matrimonial real property, on the other land, is land or things that are permanently
attached to the land. Each of the provinces and territories has passed matrimonial property legislation defining exactly
which property is considered to be matrimonial property, both with respect to real and personal property. I apologize
for all those technicalities but, unfortunately, they do make a difference in this area of the law.
We know from Derrickson and Paul that while provincial matrimonial property law cannot affect the real property
interests on-reserve, the courts can do the math of calculating how to apply the formulas that are in the provincial laws
and determine what would be a proper division, be it an equal division or some other division of property in
accordance with provincial law. The law can be applied to that extent on-reserve to Indians.
However, even to the extent that provincial laws can be applied to determine the math of what division might be,
there are problems with respect to enforcement. One example is section 89 of the Indian Act, which exempts from legal
execution, in terms of court orders, property of Indians on-reserve in terms of non-Indians. Non-Indians cannot have
the property seized of Indians on-reserve, at least with respect to matrimonial property.
There are other legal consequences of the Derrickson and Paul cases. For example, on marriage breakdown, courts
are not able to use provincial law to make orders of exclusive interim possession of a non-reserve family home. The
courts also cannot use provincial law to order partition and sale of on-reserve real property interests.
Slide 20 addresses laws in relation to family violence. We have some activity by both levels of government here. Six
provinces and territories currently have passed family violence legislation intended to supplement protections that are
available under the Criminal Code. They are intended to provide speedy access to protection and remedies without
necessarily relying on a lawyer to get it. There are no reported cases on the issue, but there may be a problem with
access to remedy of interim exclusive possession of the on-reserve family home if the same principles in Derrickson and
Paul were applied to the provincial family violence legislation. However, as I said, there is no reported case that we are
aware of on that point.
Finally, it is important to note that federal criminal law protections with respect to situations of family violence are
fully applicable on reserves, for example, peace bonds, bail conditions and so on.
An important issue in this area, independent of what the black letter of the law might be with respect to matrimonial
property, is enforcement. If you do have access to a court and to legal principles, a raft of enforcement issues affect
people living on reserves. Some of these enforcement issues relate to family law generally. There are problems that you
may see off-reserve as well as on-reserve.
There are enforcement issues that arise from the Indian Act itself with respect to enforcement of court orders, and I
already referred to section 89 of the Indian Act. There are issues relating to the enforcement of First Nations laws such
as bylaws or laws that First Nations are passing, whether under the Indian Act or some other authority.
There are issues with respect to access to Legal Aid, access to courts for people living in remote communities, and
the need for police training in this area dealing with family law.
Ms. Ginnish: One issue that you had identified was the situation of women who are forced to leave reserves. The
issue of matrimonial real property is not only a women's issue; it affects everyone living on reserves as parents, spouses
Unfortunately, there is no national study that we are aware of concerning the reality of First Nations women being
forced to leave reserves on the breakdown of a relationship. We do have some anecdotal testimonial evidence
documenting their experiences and the experiences of their children who had to leave their on-reserve homes as a result
of a marriage breakdown. That documentary anecdotal evidence relates to three things: First is the report of the Royal
Commission on Aboriginal Peoples. We also have the report of the special representative on the protection of First
Nations women's rights. We have, finally, a just-released report entitled, "Urban Aboriginal Women in British
Columbia and the Impacts of the Matrimonial Real Property Regime,'' by Karen Abbott, which we are providing to
The royal commission concluded that, while there was no prohibition against women owning property through a
certificate of possession, there certainly was a perception that women were not entitled to hold certificates of
possession. The commission suggested that that perception is as a result of a history of legislation that has excluded
women over time.
The royal commission also concluded that there are problems in situations where a woman is a victim of domestic
violence. The male partner's control of the residence in those situations can become very problematic. If a woman who
has been a victim of domestic violence wishes to have sole occupancy of the marital home, she must launch a civil
action. If the marital home is on-reserve, the provincial court is unable to handle the case because it falls within the
federal jurisdiction over lands reserved for Indians. At the same time, as we are aware, federal legislation to deal with
this matter does not exist.
Consequently, women in these situations have no alternative but to leave the marital home. Given the shortage of
housing on most reserves, women usually have to choose between moving in with relatives on the reserve and perhaps
living in an overcrowded situation and choosing to leave the community all together. The physical abuse that the
woman has suffered is then compounded by the loss of her home, as well as her extended family and her familiar
surroundings. The royal commission heard a great deal about those issues in the representations from Aboriginal
The royal commission concluded that First Nations should have inherent jurisdiction over marriage and property
rights. The royal commission saw that as part of the core area of First Nations' inherent jurisdiction. They also noted
that many First Nations women who appeared before them wanted to see a review of residency bylaws to ensure that
residency bylaws did not unfairly affect a particular group. Here they were particularly concerned about women who
had been reinstated to band membership under Bill C-31 and whether residency bylaws passed by First Nations after
Bill C-31 would restrict their access to residence on-reserve.
There was also a need to ensure that interaction under residency bylaws, with band membership codes, by which
First Nations can decide who is a member of the band, do not operate jointly to exclude people that they should not.
The special representative's report, which I referred to earlier, was submitted to our minister on January 18, 2001. I
understand you have received a copy of the report. For that report, the special representative held 17 focus group
sessions across the country, including a total of 288 First Nation women participants.
Some of the women who spoke to the special representative raised the issue of unfair band housing policies. For
example, some First Nations stipulate that you can only have one housing allotment per family. If there is a marriage
breakdown and if the woman in question does not receive possession of the matrimonial home, she cannot
automatically get another home or house on the reserve since, according to that First Nation housing policy, the
allotment has already been made for that family. If the man is in the house, that is a housing allotment.
There is also an issue of difficulty in terms of securing alternative housing on the reserve if she must leave the
matrimonial home. There is a chronic housing shortage on reserves. Not every reserve has interim housing. There
certainly is difficulty in securing alternative housing.
Women who spoke to the special representative also spoke to the fact that there is no protection of the family home
during marriage or on separation. In some situations, a spouse could sell the matrimonial home without the permission
of his wife if there were no joint certificate of possession.
Some women also raised the issue of inability to get band membership. Take the example of a First Nations woman
from one community who marries a First Nations man from another community. In some occasions, the husband's
First Nation community will not accept the wife as a member of the band. In that situation, she does not even have the
opportunity of holding an interest in property on that First Nation's community's reserve because she is not a member
of that band. That was another issue some women raised.
You also have First Nations communities where no certificates of possession are actually issued. Some First Nations
communities, as Mr. Kipping said previously, have traditional holdings. In those situations, the housing and the land
allotment may be at the discretion of the chief or the council. There is no security in terms of tenure.
The Abbott report is being provided to you today. This is a study that was undertaken in British Columbia
involving 29 Aboriginal women who were willing to share their experiences with us. There were some very interesting
findings as a result of that report.
First, we found that, for the most part, common-law relationships were more prevalent than actual legal marriages.
Of the 29 women who were part of this study, 52 per cent of them had common-law relationships and only 38 per cent
were legally married. The vast majority, 86 per cent, had no awareness of the rules relating to the division of
matrimonial real property once marriage broke down. They had no knowledge whatsoever of anything related to
matrimonial real property.
Those women cited many factors for leaving the reserve when the marriage broke down. They spoke about the lack
of housing, concerns about financial security, and the lack of both educational and employment opportunities once
they could no longer rely on their spouses for support. One very interesting factor is that 72 per cent of those women
left their reserve communities immediately on separation and the majority of them left because of domestic violence.
That suggests a close link between leaving a community and the issue of domestic violence.
For the most part, there was no equitable division of matrimonial real property for these women even though 76 per
cent of them had jointly held certificates of possession with their husbands.
They spoke to many unexpected changes, both negative and positive, once they had to leave the community. On the
negative side, these women spoke to the loneliness they felt after they left the community, their sense of cultural
alienation. There was in some instances denial of support from the First Nations community they left. They all had
On the positive side, some of them did feel a higher degree of security once they had left an abusive situation. They
felt safer. In some cases, they had better access to employment and to educational opportunities. Some of them spoke
to an increase in their feelings of self-esteem. Realizing they could take care of themselves and their children on their
own, outside of community, gave them that sense.
However, what was disappointing to find out was that, of these women, 79 per cent of them were not receiving any
financial support at all from their ex-partners. In some situations, their ex-partner was not working, but in others, their
partner was employed. Notwithstanding that fact, they were not receiving any support.
Ms. Cornet: We are down to the last two slides.
To wrap things up, we now see there is a partial application of provincial matrimonial property regimes, and this is a
result of lack of access to rights and remedies on-reserve that you would see off-reserve.
There appears to be a need to determine the respective roles of First Nations federal and provincial governments in
law-making in this area. With respect to matrimonial real improvement, there are cultural and self-government issues
to consider. There are some important Indian Act land regime issues, such as custom allotment. There are general
matrimonial real property policy issues, issues that any government with responsibility to address matrimonial
property would have to deal with, such as the treatment of common-law relationships, among others.
With that, I am sure you have a good idea now that there are many complexities to this issue. We are looking
forward to seeing your final report. We are pleased to answer any questions you may have.
Senator Beaudoin: Thank you. I am impressed by your research. It is not an easy problem. However, it is an
I agree generally with your presentation. I agree that there are two main heads of power. One is federal, of course,
section 91(24). We agree with that. It is very strong. The other is the provincial section 92(13), which is of importance
but not as strong. We both agree with this. Does the fact that we have a province with a civil code, which is Quebec,
and other provinces with a common-law system raise any problem in practice when the provincial power may apply?
For example, a certain case may come under provincial legislation. Does the mere fact that one province has a civil
code and the others have a common-law system, and that the two systems may be a little bit different, cause any
problems in practice? I suspect not, but I should like to know.
Ms. Cornet: I personally have not examined the issue of the civil code in any detail in that regard, but I think the
larger issue is that in each of the provinces there is a matrimonial property regime that was intended to be
comprehensive and designed to apply to a total package of real and personal property, however conceived and defined,
whether under the civil code in Quebec or under a statute in a common-law jurisdiction. As a result of the Constitution,
the Indian Act and all of the legal aspects we spoke to this morning, it applies in a fractured way on reserves. A system
that was intended to be complete and comprehensive, at least to a large extent, is certainly far from that. That applies
to any province.
There may be some very particular issues in Quebec, but I certainly would not have any kind of expertise to speak to
Senator Beaudoin: I do not know if there are in practice. It may be perhaps that there is no problem. If ever one
occurs, we would have to settle it. However, I do not anticipate any difficulty there. It happens very often that the end
results in civil law and in common law are the same. However, we are taking different routes, which is not bad, because
the two systems work together very well.
The second question relates to the constitutional amendment of 1983. As far as I remember, the purpose of that
constitutional amendment was to give full equality to men and women. We already have this in section 28 of the
Canadian Charter of Rights and Freedoms. The laws of Canada and all the provinces apply equally to men and
women. It cannot be better. It is probably the best article of the Constitution.
However, what about the Indian world? Is it exactly the same thing? I am inclined to think so. You have done
research that is impressive. My question is this: Is it the same thing?
Ms. Cornet: With respect to equality rights as between men and women, there would be several provisions of the
Constitution that would be relevant to First Nations people on reserves. You mentioned section 28. There is section 15
in the Charter. Outside the Charter is section 35 in relation to Aboriginal and treaty rights, which has a specific section
guaranteeing those Aboriginal and treaty rights equally to male and female persons.
The situation here is how to apply equality in a context where the law is simply not applying. What the relationship
is between equality rights and the non-application, litigation is ongoing where that very thing is at stake. I will not be
commenting on that.
Senator LaPierre: I am sorry, I did not understand what you told us. There are all these rights written in the
Canadian Constitution but they are not applicable because there is no jurisdiction to apply them?
Ms. Cornet: No, I am saying that the answer to how those apply to the situation of matrimonial property on-reserve
is currently being litigated in a court case against the federal government. Therefore, I was not going to comment on it.
Senator Beaudoin: The purpose of my question is this. I agree entirely that we will do a good job on this. However, in
your research, and you work very well, can we not give more attention to the constitutional amendment of 1983? If it is
in the Constitution itself, it is much stronger than an ordinary law, a principle of common law, or a principle of the civil
code. If it is the Constitution, it cannot be more important.
I would suggest that this point be dealt with, perhaps not today, but in the days to come, as there should be no
difference between an Indian woman and another woman, in my own opinion. If there is a difference, it is to give the
collective rights that belong to the Aboriginal nations. That is another thing. If it is more, I accept that. If rights are not
equal between Aboriginal and none-Aboriginal women, we should deal with that.
I rely on you because you are the experts in that field. It is a comment, but it is a question also.
Ms. Ginnish: That is certainly something we can raise with our legal people in terms of future policy-related research
that we can do.
Getting back to your earlier point when you were talking about the Civil Code in Quebec, you will be interested to
know that we are working with the Native Women's Association of Quebec to undertake a study of the application of
the Civil Code in terms of matrimonial property on reserves in Quebec. They are undertaking a study for us, which
unfortunately will not be ready until likely January, but we will have some information on that.
Senator Beaudoin: Perhaps you may press them and have it for December.
Ms. Ginnish: We will certainly do our best.
Senator Beaudoin: I would like to see that, if it is possible.
Senator Jaffer: I have found your presentation useful.
One thing I should like to understand is the reasons for just issuing a certificate of occupation and not a certificate of
Mr. Kipping: If I may, is it possible that my learned friend may answer, Mr. Serge Larose?
The Chairman: Mr. Serge Larose, for the advice of the committee, is a senior adviser to Indian Affairs. He is a
retired former manager of lands and environment.
Mr. Serge Larose, Senior Advisor, Retired former Manager, Lands and Environment Branch, Department of Indian
and Northern Affairs of Canada: This section provides that a certificate of possession is issued in cases where there is
full possession. However, a certificate of occupation is issued where certain conditions apply. A certification of
occupation would be issued for two years for the building of a house, for example.
If there is a need to build a house, if there is a condition attached to that actual issuance, until that condition is met
they will not issue a full and complete certificate of possession.
Senator Jaffer: This is completely in the discretion of the minister, and has nothing to do with the band council, for
example, from what I understand, because the house has not been built or some restrictions like that?
Mr. Larose: In most cases, the band council manages the housing program, so they are the ones who actually put
together the band council resolution with the condition on it that the house may be built within a two-year period. It
originates from the band council, yes.
Senator Jaffer: Are certificates of possession or occupation now issued in joint names if the people are married, or is
it automatically still in the name of the husband? I want to understand the history. It was in the name of the man
normally, and I know the history, it was the same for all women. However, has there been a change in practice?
Mr. Larose: In some bands, depending on the advancement of the band — in most cases in the past, the common
practice was for the lands to be allotted to the male member only. This has evolved in some communities. Houses are
being built and often the two parties participate in paying for it, paying the mortgage. Given the new mortgage
availability reserve, there is more and more of a trend to have both names on the certificate of possession.
There are two ways this is done — joint tenancy and tenancy in common. In joint tenancy, a house automatically
reverts at death to the surviving joint tenant. In tenancy in common, it goes to your heirs. Basically, that is the
Mr. Kipping: We have done some work in this area. Of the 40,520-plus reported active certificates of possession we
currently have, over half, 54 per cent, belong to male possessors; 46 per cent are in the name of the female. As well,
many of them are in joint tenancy. An increasing number of First Nations are allocating certificates of possession in
joint tenancy now.
Senator Jaffer: Matrimonial property for women generally in Canada is fairly new. In the discussions following
Murdock about women's rights and equal rights, was there any discussion for Aboriginal women on reserve?
Ms. Ginnish: Not that we are aware of, no.
Senator Jaffer: Would you be in favour of provincial rights applying if the legislation were to change, that is, the
exact provincial rights applying on reserves?
Ms. Ginnish: That is a difficult question to answer because regardless of the regime that is brought forth, it would
have to be able to deal with all the different situations we have on reserves currently. We would not only have to worry
about lands that are administrated under the Indian Act, but we also would have to take a look at the issue of land that
is allocated through custom and traditional allotment, if there were a means by which provincial legislation could take
into consideration all the variations.
Senator Jaffer: The challenge is, as you said, that there are many more common-law relationships, and in my
province, in British Columbia, in common-law relationships, the rights do not apply.
Senator Lapierre: On the issue of the relationship between the law in Quebec and the law in the other provinces,
mention was made of the fact that a report was supposed to be prepared in 2002.
Consequently I beg of you to use your authority, or the minister's authority or God's authority, to ensure that we
have this by November, because if we do not have it by November it is useless. It is very important for us to understand
I would think that I live in a country where there are absolutely no human rights. I would think that I live in a
country where men and women are not equal. I find this utterly and completely scandalous. I do not understand how it
is that, for the past 134 years, women have been penalized for being women and continue to suffer extreme hardships.
I lived in British Columbia for 15 years, and I made programs on this. We even made programs before you born on
"This Hour Has Seven Days'' on this very question of the rights of women. Here we are again. Therefore, I say: Who is
responsible for this mess, the department, the band council, me — not Senator Beaudoin, of course — but who is
responsible? Someone must be responsible and, therefore, accountable for this, or did it just grow and no one paid
attention to it?
Ms. Ginnish: I certainly cannot sit here and accept all of the responsibility for the wrongs in the world. However, the
biggest problem has been the legislation is currently in force, which is the Indian Act. The Indian Act makes no
accommodation for this issue. It is an issue that was not considered when the act was designed. As the act has had so
few amendments to it, it is an issue that has not been addressed to date. That is why we are in the situation that we are
Senator LaPierre: We have land treaties that are being negotiated, passed, accepted and so on. Do they deal with
this question in accordance with the Charter of Rights and Freedoms and the other things that my learned friend
mentioned, especially the constitutional amendment of 1983?
Ms. Ginnish: When we are looking at the negotiation of self-government arrangements, matrimonial real property is
an issue that can be addressed during that process. We also have the First Nations Land Management Act, which does
provide some remedy for the development of matrimonial real property regimes for those First Nations that come
under that legislation.
Senator LaPierre: Is it possible for you — if that is a proper thing to ask — to look at these land claims treaties that
have been passed and to try to identify where the matrimonial arrangements, whatever Senator Beaudoin would use as
a word here, have been dealt with. Is that possible to get or is to too complicated?
Ms. Ginnish: That is certainly something we can provide you with.
Senator LaPierre: That would be useful for us because there could be new regimes starting.
The report of the special representative on the protection of First Nations women's rights noted that, before the
Europeans came, women were traditionally an integral part of their communities and governments. In many tribes,
women owned the property. In many groups, genealogy and inheritance were traced on the mother's side. This is no
longer the case.
Ms. Ginnish: The situation varies depending on which tribal group you are speaking about. When you look at
leadership in the community, we have leaders who are chosen through the Indian Act. Chiefs and band councillors are
elected in accordance with the election provisions of the Indian Act. The First Nations governance legislation is
looking to change that, but those changes will address the terms of office, accountability profiles, different things.
Women have the opportunity to run for chief and council at the community level.
Senator LaPierre: In your view, what will repair this horrible damage that history has caused?
Ms. Ginnish: Increasingly, as we see more women involving themselves in leadership at the community level, in
negotiation of self-government agreements and standing up for their rights as individuals, we will see a change.
However, like change in everything, it is a slow process. We certainly hope that by having the Senate committee look at
this situation and by providing recommendations that point us toward a solution, this is something that the
government will, at some point, be able to address.
Senator Chaput: My question is about what are known as "custom marriages.'' I am told that marriages may be
contracted in accordance with aboriginal tradition. This is an aboriginal right that is protected under section 35 of the
Constitution Act. I would like to have a better understanding of what this means.
First of all, are there some communities, or places where lands are granted by custom, under the Indian Act? Has
that caused any problems? Do women who live on reserves where these lands are granted experience any problems
because of this custom? And if this custom is still in place and if there are any problems, how will this be integrated into
the big picture at some point to ensure justice and equality for aboriginal women throughout the process?
Ms. Ginnish: I will speak to the issue of custom marriages and, perhaps, Mr. Kipping can speak to the question of
The department does not keep a record of custom marriages. Custom marriages, as you say, are marriages that are
performed in accordance with traditional customs. Thus, we have no information in our records as to the prevalence of
When we looked at the study we did in British Columbia — that was a small sampling of 29 women — the majority
of those women had common-law marriages. In some cases, if they were from a community where custom marriages
were the practice, they could well have been custom marriages.
In terms of custom land allotments, I will defer to my colleague here.
Mr. Larose: The way in which the lands are held, particularly in the Prairie Provinces, has often become the custom.
There is a large parcel of land that is occupied by the Indians. There are really no subdivisions of the land. People
occupy parcels of land at the pleasure of the band council. In most cases, people have been occupying these parcels of
land for hundreds of years. These people know the physical and geographic boundary of the land within their
community. We do not administer these lands. There is really no problem with them.
Senator Chaput: Has this tradition helped aboriginal women obtain their rights, or has this custom been harmful to
Mr. Larose: Since we do not have to make the subdivisions that could result from a separation or a succession, I do
not know whether we have any data on this.
Senator Chaput: Is this a factor that should be considered?
Mr. Larose: Yes. Perhaps some research should be done on this. Do things work better with this system?
Does it work better with this system, or is it better with a system where certificates of possession? The fact that we do
not hear about problems in that area does not mean that they do not exist.
Ms. Ginnish: Senator, perhaps, you can raise this issue with the other witnesses that you have scheduled to appear
before you. Certainly, you will have an opportunity, when you speak to some of the First Nations that operate under
the First Nations Land Management Act, to get from their perspective whether or not that has improved the situation
to be able to deal with matrimonial real property through that regime. At least they will have had the experience of
dealing with the situation prior to coming under the First Nations Land Management Act and then after coming under
the First Nations Land Management Act. Perhaps they would have some insight to share with you.
Senator Joyal: It is a pleasure to have you here Ms. Ginnish and Mr. Larose. I have had exchanges with Mr. Larose
in a previous life. It is very good to see you this morning.
I would like to take up the issue where Senators Beaudoin and LaPierre have left off. There is something that
members of this committee must understand very well as a fundamental starting point. To me, the fundamental
starting point is not a fight between sections 91 and 92, which is our traditional fight in Canada, at least among non-
As Senator Beaudoin has mentioned, since 1983 we have had principles that apply to Aboriginal people. When we
adopted the Charter in 1982, it was made quite clear that the provisions of the Charter should apply equally to men
and women. That was put in the original proposal, then dropped by the provincial premiers, and then reinstated in the
last round. Many of my colleagues will remember the pressures imposed in those days. Section 28 of the Charter
Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to
male and female persons.
As Senator Beaudoin has stated, the question remains open as to whether the equality of sexes applies to traditional
Aboriginal treaty rights. The question remains because section 35 of the new Constitution is not in the Charter but
rather in Part II of the Constitution Act of 1982. The first section of Part II is section 35. Section 35(4) states:
Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1)
are guaranteed equally to male and female persons.
I enjoyed your presentation this morning. It illustrated the intricate spider's web of provincial and federal laws and
Aboriginal traditions, and we are trying to find our way through that labyrinth. The first principle to understand is, if
Aboriginal males and females are equal and have equal Aboriginal and treaty rights, which is the supreme law of the
land, then which parts of the Indian Act are in contradiction with the equality of Aboriginal and treaty rights and with
the traditional approach of not granting a certificate of possession to female persons? The principle exists. It is not as
though we were trying to promote something that is not recognized. It is recognized and it is the starting point.
Ms. Ginnish, you are the Director General of the Gender Equality Branch, which means that you are responsible for
section 35(4). I do not want to embarrass you because I highly admire your work. However, has your branch done a
thorough study of the impact of section 35(4) on the Indian Act and other federal legislation that does not recognize
the principle of equality?
Perhaps I am too Cartesian. However, when we have a clear principle in the Constitution, should we not adjust the
system to the principle and not the reverse? We are now trying to do the reverse, and it is difficult. You have made it
very complex in the way in which you have presented it. Since we have that principle, should we not start with it? It is
as important as section 35(1) and has existed for 20 years.
In the Senate, the fight is traditionally between the federal and the provincial levels, but our first question is always
whether a matter is a Charter issue, whether it is a constitutional issue relating to the fundamental rights of Canadians.
We apply this principle in the non-Aboriginal society of Canada, and I believe it is equally the principle in the
Aboriginal society of Canada.
Ms. Ginnish: I am not a lawyer, so I will not be able to respond as fully as I should like. However, from our
perspective, in terms of dealings and discussions with First Nations, it is our position that the Charter does apply
equally to men and women. That is the position we take in self-government negotiations. That is an issue that we
When Bill C-31 was being developed and the issue of band membership codes came up with First Nations having the
authority to determine who was a member, we raised the Charter issue with First Nations. When we saw band
membership codes that might cause a problem in terms of the Charter, we made our concerns known to the First
Nation in question as well as to their legal advisers.
On the bigger issue, I will defer to Wendy Cornet, who is a lawyer, and who has done a fair bit of research for us on
this issue. Perhaps she can provide more clarity.
Ms. Cornet: I will try. No one will argue with the principle you are raising of the primacy of equality between male
and female persons, including the enjoyment of Aboriginal and treaty rights by men and women in Canada. It is in the
Constitution in many different ways. That is the result everyone wants and I think there are few people who will argue
with that as a result, but the question is how to get there.
Do you achieve equality between men and women on-reserve with respect to matrimonial real property simply by
seeking the full application of provincial matrimonial property laws? That is a question on which your advice might be
We have brought out some of these very technical and unique aspects of the Indian Act because they are relevant to
that question. Some people in the First Nations community would like to see the full application of provincial
matrimonial property law on-reserve. If that happened, would it actually work at the end of the day? If you have
unique legal and housing arrangements, if you have custom allotments, if you have an Indian Act certificate of
possession system, all of which were not contemplated by provincial governments when they were passing their
legislation, would it work in practice?
The second question, assuming that there is a kind of lawmaking gap because we do not have laws that apply to
matrimonial real property on-reserve to the fullest extent that many people would like to see, is this: Who should fill
that gap? Should it be the federal government? Should it be the First Nations, given another principle in the
Constitution with respect to Aboriginal and treaty rights and given the federal government's position that that includes
some self-government rights? What are the implications of that? Who should make the laws, assuming that some need
to be made? Our purpose today was simply to demonstrate that those larger questions are very important because of
some of the fundamentals of the constitutional and legal situation.
Senator Joyal: Ms. Cornet, did your department ever consider studying or testing the Indian Act? Ms. Ginnish and
other witnesses mentioned this morning that it was enacted in the 19th century and provides a 19th-century concept for
the approach to Aboriginal rights in Canada, which we all recognize. Did you study the act in respect of the
implementation of male and female equality? Where does the act harm the principle or maintain what I call
discrimination system''? The wording could be as blunt as "this provision is reserved for males.'' Other wording may
establish a system, or maintain a situation, that prolongs or extends systemic discrimination that bars women from the
benefit of equal access to the act. The second one is more insidious than the first one.
Ms. Ginnish: Certainly, when the charter legislation was being envisioned, there was an examination of all federal
legislation to determine which parts of specific acts were in contravention of the proposed charter. Thus, we had Bill C-
31 and the amendments to the membership portions of the act because it contained a clear contravention, which was
pointed out to us, and we had to deal with it.
On the question of matrimonial real property, there is a gap, and so that issue did not come up. There is nothing in
the act that actually deals with the matter of matrimonial real property. No section indicated that there was a
contravention of the Charter in respect of this issue because the Indian Act contains nothing in respect of matrimonial
real property. There is a clear gap in the legislation. That, to a degree, explains why the issue did not come up at that
time. The issue was not highlighted when we examined the act section by section.
Senator Joyal: Yes, but the system it put in place, which was essentially the recognition of the existing situations that
were sometimes discriminatory toward women, was maintained. That is the key point. The most important
improvement that we could bring to Canadian life is the elimination of systemic discrimination of women.
I will use the Senate as an example. In 1929, there was a decision of the judicial committee of the Privy Council that
states that women are persons in the opinion of the Senate. In recent years, the Senate has developed a kind of balance
between the genders in the Senate. That has not happened elsewhere in any other legislative body, including the House
of Commons, in Canada. In fact, in some provinces, the number of women participating has been decreasing, rather
than increasing. We are not even sure that the system is proceeding in the right direction. That is because there is a
systemic discrimination of women's participation in the electoral process.
It is extremely important that we understand the working of the Indian Act that is contrary to the equality of males
and females. If this committee were to recommend an action in respect of this issue, it would have to be within the
general framework of the equality principle of women and men. I am certain that honourable senators here today share
this opinion. I want to ensure good understanding of the problem so that this gap in specific provisions of the act can
be examined and considered jointly as part of the general system, so that the situation could be improved. It is
important that we obtain from Ms. Ginnish, Ms. Cornet and Mr. Kipping a clear understanding of the areas of the
Indian Act that sustain discrimination against Aboriginal women. I will explain it to you.
We have supported the development of an Aboriginal leadership. When I was Secretary of State, which Mr. Larose
will remember, there was a program to develop Aboriginal leadership. The program was important to the goal of self-
government in respect of Aboriginal leadership. We did not request that leaders be Aboriginal males only, despite
section 35(4), because equal access and consideration should be given to Aboriginal women, too. However, we were so
eager to develop Aboriginal leadership that we decided to copy the due process of non-Aboriginal society and elect the
leadership and establish the rules. However, 20 years later we are wondering where the Aboriginal women in leadership
Last August, I was happy to learn that a woman was running for the Assembly of First Nations, AFN. I deem that
an immense step forward, but it must occur at all levels where men have held leadership roles, not only at the national
level. I know it will eventually happen, but keep in mind that it is a constitutional provision and not just wishful
thinking on my part. It is compulsory.
If Indian and Northern Affairs Canada could provide us with the study and evaluation of the Indian Act in respect
of the principles, it would be helpful for this committee as a starting point to our recommendations.
Senator Ferreti Barth: I fail to understand why we are still discussing women's rights as regards matrimonial
property. Are women who live on reserves properly informed about their rights? If there is an information process on
the rights, is it shared uniformly from one reserve to another through band councils?
Under traditional law, does a married woman have the same rights as another woman in a common-law
relationship? What information is available to these women?
Ms. Ginnish: Certainly, many women that we spoke to during the focus group sessions raised the issue of lack of
information. Partly in response to that, we hired Ms. Cornet to head up the discussion paper on matrimonial real
property, which we provided to you. We then took the information from that discussion paper and developed a plain
language document, which is now available, that explains this very issue to women.
Band councils do not have at their disposal a great deal of information on this issue; we are just starting to get to the
point where we are providing information now. We had a number of discussions, seminars and workshops on this issue
leading up to the decision that was made for the Senate to look at this issue. It is one of the aspects of the issue that that
we will have to deal with once you provide us with your report and your recommendations. The minister at that point
will have to go to cabinet and discuss the issue of consultation, and education will form part of that plan.
Ms. Cornet: I would add that, for First Nations who explore the options available to them under the First Nations
Land Management Act, there would necessarily be a process of community education on this issue, because that act
requires that there be a consultation process to develop laws with respect to matrimonial real property issues.
There are currently 14 First Nations, I think, that are under the agreement and quite a few more that are exploring
that as an option. Therefore, that is part of the activity in terms of education on this issue.
Ms. Ginnish: Another thing we are looking at is the development of guidelines for self-government negotiators on
this issue so they will have the information necessary to discuss this with their First Nations counterparts at the table
when self-government is being negotiated.
Senator Ferreti Barth: Why is it that, after so many years, people are still living in such profound ignorance? What
has the government done until now?
You talked about seminars that are provided, but do the aboriginal people participate in these seminars? Does a
woman who is forced to leave her house overnight really know about her rights in such a situation? In my opinion,
there is a total absence of information and people are not at all prepared for the situations in which they find
Why do we go to school? We go to learn how to read and write, and how to speak. But if we leave these people in
such complete ignorance, the problem will persist. We can always legislate or amend laws, but we have to first resolve
the underlying problem. People have to take charge of themselves, help each other out.
Do the band councils all manage their business in the reserves in the same way or is it up to each and every band
council to decide how it wishes to operate?
Mr. Kipping: I think, senator, if you are referring to the process of land allocations, each First Nation handles land
in a distinct manner.
Senator Ferretti Barth: The same?
Mr. Kipping: No, in a different manner.
Senator Ferreti Barth: How are we going to resolve the problem if each band has its own way of managing
matrimonial real property?
Mr. Larose: It is a matter of education. Some band councils are more evolved than others. In some places, the
people are familiar with this type of situation and have tried to come up with solutions within the band councils
whereas others have taken a totally different approach and the men are given the big end of the stick. That is how it all
works right now. It is a question of evolution and information.
Senator Lapierre: We need to force the matter.
Senator Beaudoin: I agree with what Senator Joyal said. Nevertheless, I would like to add something. The Canadian
Charter of Rights and Freedoms applies not only to the Parliament of Canada but to the provinces as well. We must
not forget this fact. That is why I would like the study to be completed by November rather than December.
Section 35(4) also applies to Quebec and all of the Canadian provinces must comply with this section of the Charter.
This must be said and I am happy to do so for the purposes of this study. The provinces must also be told. I come from
Quebec and I will pass on the message. These people are subject to the Canadian Charter of Rights and Freedoms, just
as we are. They must also respect the equality of aboriginal women in everything.
There is nothing more important than the Constitution because it forms the foundation of our laws. We are
wondering what to do and the solution is very simple. The provinces, like the federal government, must abide by the
Ms. Cornet: The provincial matrimonial property laws that we have looked at clearly have equality between men
and women in mind. They have done their job. The problem is, as a result of Derrickson and Paul, we know that those
do not reach Indian reserve lands with respect to matrimonial real property — that is the problem.
The provincial governments have passed legislation that recognizes the equal position of spouses in every
jurisdiction in Canada — every single one. That is not to say that they are without defects. Everything can be
improved. However, they have that basic principle encased in every jurisdiction. The provinces have done that.
Some First Nations women attempted to use exactly that legislation and apply it to their situation on-reserve, and
the Supreme Court told them that it cannot be done. Section 91(24) prevents the application in some areas. Some of
that provincial law applies to you; some of it cannot be used — that is what they said in Derrickson and Paul.
Senator Beaudoin: Can you quote me the case?
Ms. Cornet: Yes, one is called Derrickson, and the other is Paul. The same principles were applied in both.
Senator Beaudoin: I will read them again, because how can the courts say that?
Ms. Cornet: To give you an example, in one of those cases, the certificate of possession was held jointly by the
husband and wife, and still the court could not order interim exclusive possession of the home to either of the spouses.
If it were off-reserve, the court would have had that power. On-reserve, because of the Indian Act provisions, it could
not change the land regime under the Indian Act. The province does not have the power to change an interest that has
been assigned to someone under the Indian Act.
The only place to look, obviously, if you do not like the status quo, is either federal lawmaking activity or First
Nation lawmaking activity, one would presume. How you coordinate that and where the various political actors decide
the answer lies is for the political actors to determine.
Senator Beaudoin: We have to find a way.
The Chairman: Thank you, Senator Beaudoin, and thank you, witnesses.
Thank you so much, your presentation was very interesting. We will certainly remember your comments for a very
I should now like to welcome Ms. Pamela Paul, president of the National Aboriginal Women's Association of
Canada. I had the pleasure of meeting Ms. Paul in Edmonton during their cross-country tour.
Also present is Ms. Montour, a lawyer with the National Aboriginal Women's Association. We have Ms. Tiffany
Smith from the Yukon and Ms. Marie Frawley-Henry, director of International Affairs, and Mr. Rogers Jones who is
also with the First Nations group.
Welcome. Please proceed.
Ms. Pam Paul, President, National Aboriginal Women's Association: Honourable senators, on behalf of the National
Aboriginal Women's Association, we thank you for your invitation of August 26 to be here. We respectfully request
that this presentation and references therein be made part of the official record of the proceedings.
I know you are just getting that presentation now. We are sorry for that. We had two weeks' notice and we just got
finished on Sunday.
In summary, NAWA recommends that legislation, via amendments to the Indian Act or separate legislation, be
passed to achieve an ideal matrimonial property regime for Aboriginal spouses and their families on reserves in
Canada. The Government of Canada must meet its obligations under both the Canadian charter and the International
Covenant on Civil and Political Rights to ensure equality of Aboriginal spouses and the protection of Aboriginal
families and their children.
For the purposes of this presentation and in accordance with the mandate of the committee, NAWA will use the
terms "matrimonial property'' and "family property,'' but it should be noted that these terms are not truly descriptive
of the Aboriginal perspective of these matters. A more appropriate term would be
"family patrimony,'' which would be
more conducive to the concept of use and possession for family purposes. It is the position of NAWA that an ideal
matrimonial property regime on reserve would be in harmony with aboriginal and treaty rights and titles. Before the
coming of the Europeans, Aboriginal societies in North America protected the integrity of the family and the family
home and property, and their customs reflected these values.
The Iroquois had a matriarchal clan system that had jurisdiction over property and civil matters. Iroquois women
controlled the family residence, the farm, and food storage and cooking, while the men were responsible for hunting
and fishing. Upon marriage breakdown, the man moved to his mother's residence or established another residence.
The Wet'suwet'en Nation of British Columbia deals with marriage breakdown and matrimonial property through their
clans. The Mi'kmaq in the Maritimes were matriarchal or egalitarian, with both sexes having participation in decisions
on policies that were carried out by their leaders.
Today, NAWA wishes to bring to your attention the key issues in our recommendations regarding the complex
subject of on-reserve matrimonial real property on the breakdown of a marriage or common-law relationship and
related policy under the Indian Act. Due to the time restrictions and limits of the mandate of the committee, NAWA
will not present the long and complicated background and legal issues related to this matter. If further details are
required, we should like to refer your committee to a comprehensive research document entitled,
Matrimonial Real Property On Reserves,'' done during 2002.
NAWA may from time to time make reference to other matrimonial systems implemented by Aboriginal peoples of
Canada under the First Nations Land Management Act, FNLMA, and self-government and land-claim settlements.
NAWA has a valid concern that your limited mandate to reserve lands under the Indian Act on the breakdown of a
marriage or common-law relationship may lead to more legislative gaps with resulting inequality and lack of protection
for Aboriginal spouses and their families in other areas, such as successions or estate matters. Thus, reference will be
made to this area throughout this presentation.
The Indian Act is not totally silent on the matter of matrimonial property. We would refer you to the part on
distribution of property on intestacy.
Section 48(12) prevents a widow or widower from claiming dower or curtesy in the land of their spouse who dies
without a will. It declares that there is no community of real or personal property situated on a reserve. There are other
subsections giving some protections, such as the right of habitation in the family residence and other financial rights.
These protections are limited to cases where the deceased has died without leaving a will and are, for the most part,
subject to the discretion of the minister.
This is a denial and an outright removal of rights that are available to spouses off-reserve. The Indian Act was
designed to deny Aboriginal spouses any rights to matrimonial property, which continues to the present day. This is
contrary to guarantees under the Charter to equality of life, liberty and security, which are fundamental human rights.
This is unacceptable in today's society.
In 1986, this lack of equality and security rights for Aboriginal spouses and their families under the Indian Act was
further confirmed by the Supreme Court of Canada in Derrickson v. Derrickson and Paul v. Paul. The Supreme Court
pronounced that spouses on-reserve, which in these cases were both women, have no right to a division of matrimonial
property or right of exclusive interim occupation of the family residence, as their husbands held the certificates of
possession for the family property under the Indian Act.
The Chairman: Could I ask you to slow down for the translators?
Ms. Paul: The Supreme Court further held in Derrickson that an order for compensation in lieu of an interest in the
property could be obtained under provincial family legislation.
This injustice occurred because the Indian Act has no specific provision for reserve lands used and acquired for
family purposes in the section "possession of lands in reserves'' or in any other sections of this act.
In essence, possession of reserve lands by an Indian must be allotted by the council and approved by the minister. It
is not necessary to have a certificate of possession to establish lawful possession and can be inferred from a course of
conduct on the part of the council and the Department of Indian Affairs.
Other methods for possession include a certificate of occupation or by permit from the minister, but are limited in
time and must be renewed. The Department of Indian Affairs keeps a Reserve Land Registry that records all
certificates of possession, certificates of occupation, and other land transactions. Any individual with lawful possession
can transfer to another member or to the council his or her right to possession, which is subject to approval by the
minister. There are no provisions for partition or division of this possessory right and/or certificate of possession.
Thus, joint possession by spouses does not assist in family disputes, as the court cannot order forced partition due to
the lack of provisions for this remedy under the Indian Act.
The interests of Aboriginal spouses in the family property are not protected in the event of dissolution or breakup,
not even the family residence. There are no provisions for equal rights of spouses to possession of the family residence,
right of habitation, equalization payments or compensation, domestic contracts or specific remedies to enforce rights.
An Aboriginal spouse with lawful possession, with or without a certificate of possession, may transfer his or her
possession without the consent of his or her spouse, and even if contrary to the interests and security of their children.
This is a common occurrence in family disputes and is often used to avoid obligations for compensation and support.
This is also a problem in estate matters, whereby a spouse by a will may leave the family residence to another
member of the community other than his or her spouse or children. This happened to an elderly woman upon the death
of her husband. His written will left the family residence to his son, who promptly evicted his mother. She had no right
of habitation in the family home.
Other problems are Aboriginal spouses, most often older women who have abusive and addicted spouses who hold
the lawful possession to the family home. These women fear for their physical safety and are often advised to leave
their homes. At this stage of their life, a lengthy and acrimonious court battle for compensation may not be an option,
or advisable for health reasons. Leaving the home may not even be an option in some cases due to the housing
shortage, lack of financial resources, and isolation of Aboriginal communities.
There are new problems for Aboriginal spouses arising daily. One widow cannot leave her family residence for any
extended period to visit her children who live across the country because the council will permit another member to
occupy her residence. She cannot access programs for renovations as she received Aboriginal veterans compensation
from her late husband. She has no right of habitation in the family residence.
There is no provision under the Indian Act for registration of the family residence in the reserve land registry. The
Civil Code of Quebec provides for such registration, which prevents any transfer of the property without the consent of
Although the courts may award compensation or equalization payments to Aboriginal spouses in connection with
on-reserve matrimonial property, problems arise when the other spouse refuses or does not have the means to make the
compensation payment. Often, the only valuable asset is the family property on-reserve, and under the Indian Act
there is no clear remedy for seizure or execution of a judgment. Section 29 states that reserve lands are not subject to
seizure, and section 89 states that seizure may take place between members.
An injunction was obtained under section 89 by a wife to prevent her husband from disposing of reserve assets.
There have been no court decisions regarding the use of the seizure provisions to transfer an interest in reserve lands
Furthermore, the previous remedies would not be available to a spouse who is not a member of the community.
Specific provisions for rights of habitation must protect both spouses even if one is not a member of the community, or
where the lawful possession or certificate of possession is held by a third person such as a landlord, including the
council or immediate family or friend.
There are precedents for special provisions for dealing with real and personal property on-reserve under the Indian
Act. In matters of succession or estates, jurisdiction includes both personal and real property on-reserve of a deceased
Indian. Other precedents are found in the part on "mentally incompetent Indians,'' whereby the minister may order
that any property shall be sold, leased, alienated, mortgaged, disposed of or otherwise deal with for certain listed
purposes such as payment of debts and another in the part on "guardianship.'' Thus, there would be no constitutional
impediment in provisions amending the Indian Act or other legislation that provide a scheme for the possession of
family property on-reserve, to ensure equality of Aboriginal spouses and protect the interests of the Aboriginal family,
Any amendments or legislation could direct that courts take into account the circumstances of Aboriginal spouses in
making decisions respecting the possession of family property as each community has its own customs regarding family
property, which, for the most part, involve mediation and dispute resolution. Aboriginal communities could implement
measures such as specialized tribunals to make recommendations that take into account the circumstances of the
spouses and customs for the consideration of the court. If either of the spouses disagrees with the recommendations of
the community tribunal, independent representations by the spouse or both spouses could be made to the court in this
regard. With the priority being the equality of the spouses with respect to family property and the protection of the
family, especially the children, the court could consider these community recommendations and any independent
representations from the spouses in its decision and order.
This has been done in the criminal law field via Aboriginal sentencing circles making recommendations to the court
and for administrative tribunals. Specific provisions of the Criminal Code require that the circumstances of an
Aboriginal offender be considered by the court in sentencing. The Quebec Police Act requires that members of the
committee be from an Aboriginal community to hear complaints against Aboriginal police officers for breaches of the
code of ethics for police officers.
There are communities that have attempted to implement measures to deal with this problem, but gaps continue to
arise due to the limits of the Indian Act for the protection of Aboriginal spouses and their children regarding
In the Mohawk community of Kahnawake, provisions for the protection of the family residence are provided in its
housing policy respecting community land allotments and rentals. Spouses who apply for housing loans may opt for
joint interest in the property, and the names of both spouses must be on rental leases for apartments. In either
situation, the housing agreements have provisions that, if there is a breakdown of the relationship, the spouses may
come to an agreement on the family residence, or either spouse can apply for a court order for exclusive occupation.
There continues to be gaps in situations where the family residence is constructed or acquired through other
independent avenues or prior to the housing policy, which often involves certificates of possession.
Some communities in the pursuit of self-government have removed their land management from under the Indian
Act via the First Nations Land Management Act, land claim agreements or self-government agreements. Other
communities are in the process of doing same, whereas others have not even begun the process.
Under the FNLMA, land codes require provisions for matrimonial real property, which are a step up from the
Indian Act. NAWA is of the opinion that gaps may continue in the land codes passed under the framework agreement
of the FNLMA. For the most part, only the matrimonial home is considered, and other assets such as personal and
real property — for example, a farming or ranching business property that supports the family — are not included in
the definitions for matrimonial property. Provincial family legislation is much broader in scope, thus there may be
continuing inequality for Aboriginal spouses under the FNLMA.
Land claim agreements are either silent on the matter of matrimonial property or refer to jurisdiction over the
family matters to enact laws on this matter. Often there is no specific procedure or provision for settlement of family
matters, a situation that could likely result in gaps between these agreements and provincial legislation on this matter.
Déjà vu regarding a repeat of the gaps under the Indian Act may occur, with negative consequences for Aboriginal
spouses and their families.
Amendments to the Indian Act or separate legislation regarding family property must assist communities in the
transition to self-government by providing immediate, comprehensive protections for the Aboriginal family. This
would form a basis for their own family regime, with adaptations to suit their own unique circumstances. Thus,
constitutional challenges based on the Charter may be avoided.
We have drafted some recommendations for you, which I will go through here. NAWA recommends the use of the
"family patrimony'' to describe both real and personal property used and possessed by Aboriginal spouses on-reserve
for family purposes.
NAWA recommends that the Indian Act be amended, or separate legislation be enacted, that provides specific
provisions for the family in the event of dissolution or breakup. Even when there is a domestic contract, these
provisions must protect the family residents, the equal rights of the spouses to the possession of the family residence,
equalization payments or compensation for family patrimony and specific remedies to enforce these rights.
NAWA recommends that as each Aboriginal community has its own customs regarding family breakdown and
dissolution there be provisions for communities to implement their own measures for the submission of
recommendations to the courts, that the Aboriginal spouses nevertheless have the right to make their own
independent submissions in this regard and that the courts be required to take these into consideration in their
decisions regarding family matters.
NAWA recommends that Aboriginal spouses include those who have formalized their relationship by legal
marriage, customary marriage and common-law criteria.
NAWA recommends that breakdown of marriage and common-law relationships must include dissolution by death.
NAWA recommends that any legislation or amendments address both personal and real property on-reserve
acquired during the marriage or relationship by giving a broad definition to family patrimony.
NAWA recommends that there be provision for a right of habitation, thereby protecting spouses who are not
members of the community or where lawful possession or certificate of possession is held by a third person.
NAWA recommends that there be provision for registration of the family residence in the reserve lands registry,
preventing any transfer without the consent of both spouses, which is to protect spouses who are not lawful possessors
or holders of a certificate of possession to the family residence.
NAWA recommends that there be provisions for remedies to transfer possession between Aboriginal spouses in
family breakdown in dissolution.
NAWA recommends that the gaps between the Indian Act and provincial family legislation be rectified in 2004 by
the Government of Canada in light of the urgent need to protect the family residence or matrimonial property on-
In conclusion, NAWA is ready, willing and able to assist the Government of Canada in the formulation of
legislation respecting on-reserve matrimonial property, and in carrying out any necessary research and consultation in
this regard. NAWA also supports the recommendations of other presenters that provide equality for Aboriginal
spouses, protection of the Aboriginal family home and the protection of children in accordance with the Charter and
other human rights legislation and respectfully requests that their concerns be addressed by any future legislation and/
or amendments on this matter.
Ms. Tiffany Smith, Co-Chair of the Assembly of First Nations Youth Council, Member of the Assembly of First
Nations National Executive Committee: I am the co-chair of the AFN youth council and a member of the AFN
national executive committee. I am accompanied by Roger Jones, who is legal counsel to the AFN, and Marie
Frawley-Henry, who is responsible for gender equality issues at the AFN. We appreciate the opportunity to be here
today to present our views on this very important matter.
By way of a brief introduction, the Assembly of First Nations is a national organization representing First Nation
citizens in Canada, including our citizens living on reserves and in urban and rural areas. Every chief in Canada is
entitled to be a member of the assembly; the national chief is elected by the chiefs throughout Canada, who, in turn, are
elected by their citizens.
The Assembly of First Nations is truly a representative and accountable body. It is not a dues-paying organization
or an interest group. There are about 80 First Nations in Canada and 633 First Nations communities. First Nations, or
Indians, are one of the three Aboriginal peoples recognized in Canada's Constitution Act of 1982. The other two are
the Metis and the Inuit. We share many common goals as Aboriginal peoples, but as First Nations we have our own
unique issues because of our unique relationship and status with Canada and the Canadian state.
I do not want to take up too much time on the history of that relationship because we have been asked here to
discuss a particular pressing issue. However, I encourage all members of the committee to learn about the full extent
and character of the relationship between Canada and our governments. This understanding is essential to fully
appreciate the many issues affecting First Nations, including the one before us today.
I realize that the committee has been given a limited amount of time to assess this issue and make recommendations.
This is unfortunate, as you have no doubt already begun to realize; although this issue and its remedies may appear
straightforward, it soon becomes clear that it is very complex. I hope that my presentation here today will help the
committee appreciate the scope of this issue and ultimately indicate the path forward towards a comprehensive
I understand the committee has received information and background papers from the Department of Indian and
Northern Affairs, as well as a presentation from Minister Nault. We have read their discussion paper regarding
matrimonial real property on-reserve. The problems are well documented.
Right from the outset, I want to be very clear on one point: We agree that this matter is a critical and pressing
problem. In fact, First Nation governments are keenly concerned about this problem. The chiefs passed a resolution
last year mandating the Assembly of First Nations to help coordinate a First Nations strategy on this issue.
All First Nations peoples, women, children and men, are affected by this issue. We all know of examples of heart-
wrenching situations where people have suffered displacement, isolation and a denial of basic rights. Our cultures are
centred on the respect for all people, and especially for children. Situations that create instability and ultimately result
in harm are intolerable. The uncertainty created by this legislation or jurisdictional gap must be addressed in a timely,
effective and sustainable fashion.
We suggest that a comprehensive solution is required. We will take you through the elements of such a response.
First, the scope must be broadened, recognizing that matrimonial property rights are but one example of the
inequities faced by First Nations women, children and all citizens of the First Nations.
Second, an inclusive process, respective of the government-to-government relationship of the Canadian government
and First Nations government, is required.
Third, the solution must strengthen and affirm the lawmaking capacity of First Nations rather than continuing the
colonial legacy of the Indian Act.
It is this type of comprehensive solution that we encourage you to find. As a representative for the Assembly of First
Nations, I offer our assistance to the committee in demonstrating the need for this response and the processes required
to get them there. Only in this way do we believe that the work of this committee will truly contribute to producing a
useful report that illuminates the way forward.
The bureaucracy will continue to provide its advice to you, but you must also seek experts outside of the
bureaucracy. You must speak to our experts and to our governments. This is not only the best approach, but also it is
the required approach given to our unique government-to-government relationship.
Clearly, there is a pressing need to address matrimonial property rights because of the resultant inequity suffered
largely by First Nations women and their children. However, as has been well documented by the Royal Commission
on Aboriginal Peoples, the Aboriginal justice inquiry in Manitoba and other important sources, First Nations women
and children face inequity that goes far beyond property rights. Indeed, poverty, lack of education, training and
employment opportunities, and homelessness create the most serious problems and inequities faced by First Nations
women and children.
Without this appreciation, the inequity will not be addressed. This is not to diminish in any way the need to address
property rights. On the contrary, we cite the breadth of inequity faced by First Nations women to illustrate the way in
which this issue must be handed. It must be situated within a broader context.
Indian and Northern Affairs has presented the problem as an Indian Act problem. However, if this committee
chooses to deal with this as such, your remedy will only result in a minor adjustment to the legislative regime and will
not address the inequity. I challenge honourable senators to think beyond the narrow terms of property rights, to
appreciate the breadth of the inequity and to make recommendations that address inequity directly.
The first step of broadening the inquiry is also essential, as any cursory examination reveals the interconnectedness
of this issue with land and property rights, membership and residency, First Nation lawmaking and authority, chronic
on-reserve housing shortages and many other issues. This issue clearly touches on many facets of First Nation life. It
also relates directly to the legacy of Canada's colonial control over our people and our land.
With specific reference to matrimonial property rights upon the dissolution of a marriage or common-law
relationship, laws that could apply — laws made by the federal government under section 91(24) power — do not exist.
The federal government has neither enacted such legislation nor amended the Indian Act to include such provisions.
This is arguably the worst of both worlds for First Nations people living on-reserve. In the first instance, we are
subject to the patriarchal, colonial legislation embodied in the Indian Act. In the second instance, our federal fiduciary
has failed to update the Indian Act, thereby making it at least commensurate with policy elsewhere and the rights
afforded to other citizens.
In addition, colonial administrative policies regarding land and membership procedures have favoured a
paternalistic, western approach to land tenure whereby individual males have received certificates of possession. This
approach directly contradicts First Nation communal notions of land stewardship. These policies and others aimed at
setting aside First Nation practices and traditions, coupled with the lack of any legislative remedy for First Nations
peoples, results in the problem before us today, a problem clearly created by the Indian Act and the policies and
practices of those who operate under its mandate.
The minister has now expressed that this situation is unacceptable. He said that we can do better in this country for
First Nations women, for their children and for all Canadians who want no less than justice for all on this critical issue.
We certainly agree. However, we do not agree that the remedy should be created and implemented by the very source
of the problem in the first place. Rather, we feel that we must tackle these matters together. First Nations must lead the
process, along with government, to jointly find mutually beneficial and effective solutions.
Again, I do not have the time today to adequately provide information about our traditional societies and our laws.
Suffice it to say that our nations had systems in place dealing with these matters. The imposition of the Indian Act, as is
now well documented, aimed to assimilate our cultures, destroy our belief systems and institutions, and systems of law
Indian and Northern Affairs, despite its attempts at reform, is continuing under this same colonial mandate today.
Justice will only be achieved once Canada halts this imposition and upholds its fiduciary responsibility to work in
partnership with us.
This matter of matrimonial property rights provides us with the opportunity to do the right thing. It is an area where
there is currently no legislation. The very last thing we should do is opt for continuing the colonial legacy of the Indian
Act by legislating the imposition of federal authority in this area.
This matter requires a response that recognizes First Nations jurisdiction. Such a response would be consistent with
the recommendations from the Royal Commission on Aboriginal Peoples and of the many commitments of the federal
government to recognize the inherent right to self-government.
We propose finding a comprehensive solution to address this inequity and at the same time recognize the need to
empower First Nations peoples. This can be achieved through working with First Nations, creating capacity and
respecting our lawmaking authority.
Involving First Nations in a meaningful way will mean engaging First Nations governments in a dialogue to
determine current lawmaking capacities and future requirements to expand this authority. We can draw on the
excellent example provided by many First Nations who are already creating law in this area. For example, many First
Nations are pushing the limits of their bylaw-making authority to do right thing, to protect the rights of their members
and to ensure that fairness and equity prevails within their communities.
This piecemeal approach is not good enough, however. All First Nations require greater support and capacity to
ensure that their institutions of government and their laws are built or rebuilt to ensure equity and to protect the rights
of all their citizens. A coordinated approach providing support and setting minimum standards will be required.
An obvious question may arise: Why not make a legislative change to address the immediate concerns now and deal
with self-government and broader issues as they unfold later? In this regard, I will put several important
considerations. First, First Nation lawmaking can be just as efficient as any imposed amendment from the federal
government. All lawmaking requires a multi-faceted process. The difference will be that the First Nation process will
create capacity and result in sustainable, long-term and comprehensive measures. Continuing the current legislative
regime by making mere amendments perpetuates inequity as it fails to uphold the fiduciary relationship between First
Nation governments and Canada.
I do not underestimate the challenge before this committee. My message to you is to take this task seriously, to insist
on the time required to fully consider the matter, and to embrace the opportunity to work with First Nations to find a
comprehensive solution to this pressing issue.
It is unfortunate that honourable senators have been given so little time to address this complex issue. I know that
all of the information regarding Aboriginal rights and our historic relationship with Canada creates a steep learning
curve for committee members, many of whom are actively working on other pressing human rights matters. The
Assembly of First Nations can be a resource. We would welcome the opportunity to submit additional information as
requested and to appear again before the committee as you make progress toward tabling your report.
This committee has an important opportunity to recognize the full extent of this matter, the origin of the problem
and to strike a new direction. This new direction will ensure that the full scope of this matter is appreciated, that First
Nations work in partnership with the federal government to identify the needs and requirements to address the matter,
and that the lawmaking capacity of First Nations peoples and their governments is strengthened and affirmed.
Senator Beaudoin: I should like to go back to the end of the discussion for previous witnesses. It does apply to all of
We may always legislate under section 91(24) in the way we want, providing, of course, that we do not contravene
the Constitution. However, section 91(24) gives the federal Parliament not only a unique power for Aboriginals but
also the accessory power to render its legislation strong and efficient.
If in the Indian Act you are not satisfied with certain sections because those sections do not respect the equality of
men and women, why do you not propose new legislation to that effect? In other words, after research, you may say
that the Indian Act must respect the equality of men and women everywhere.
I cannot see how the Supreme Court may conclude that you do not have the right to do that. In other words, the
problem should be reversed. Parliament should comply with the Constitution. Parliament may amend its own
legislation. The only thing that Parliament cannot do is go against the division of powers and the Charter of Rights.
That is the only obstacle.
If we legislate in such a way as to render our legislation respectful of the equality of men and women, I cannot see
where the Supreme Court will not agree with us, because it is enshrined in the Constitution. It is enshrined in section 28
of the Charter. I know that section 35 is not in the Charter, but it is in the Constitution Act of 1982, and section 4, as
quoted by Senator Joyal, is very clear-cut. In addition, we have section 25 of the Charter.
I would take the risk. I do not understand see how the Supreme Court would not agree with that because I have
never heard of the Supreme Court being against the equality of men and women. It would never do that. Sections 15,
25 and 35(4) exist, and there was a constitutional amendment in 1983 to that effect.
I wonder whether the problem is not more in the legislation than in the Constitution. In other words, why do we not
do this if we are not satisfied with the legislation? If we are not satisfied that men and women are equal, we need only
render men and women equal in our own legislation. The Supreme Court will never say that it is against the
Ms. Martha Montour, Legal Counsel, National Aboriginal Women's Association: In our paper, we agree that
amendments and legislation must respect the Charter and provide equality for spouses, but it is also our basic position
that it must protect the family home and the security of the children.
You said that the Supreme Court never discriminated against women. It did so in Attorney General of Canada v.
Lavell, where the National Indian Brotherhood intervened.
Senator Beaudoin: Just a minute. The Lavell case was appealed to the United Nations by Ms. Lovelace, a fantastic
lady, and she won.
Ms. Montour: But the Supreme Court of Canada —
Senator Beaudoin: No one is talking about the Lavell case any more. It is terrible. It is like the Persons Case at the
Supreme Court. The Privy Council said that we are living in less barbarous times. The Lavell case and the Persons Case
no longer exist. The Privy Council said men and women are equal. You say that there were some decisions of the court
to that effect, and I agree. However, we no longer quote them in the faculties of law.
Ms. Montour: I just wanted to bring that respectfully to your attention.
Senator Beaudoin: You have been very respectful.
In 1982, Trudeau was Prime Minister of Canada. He said that we would wait three years before putting into effect
section 15 because it would take time to give equality to men and women. We gave Parliament and the legislatures
three years to change their legislation. We are now doing that with the Aboriginal nations. As a matter of fact, we did
this 20 years ago. It is not yesterday — it was 20 years ago that we did that. Therefore, we have an obligation to change
My point is this: If we look at legislation and we find something that does not respect the equality of men and
women, we should immediately change it. If someone goes before the Supreme Court to challenge this, he or she will
lose his or her case. There is no doubt in the world about that. For me, it is not a big problem, but we must do this.
The witnesses who appeared before us this morning were very good, and I compliment them. You are very good as
well. However, we have no obligation to keep the legislation as it is. We may modify it every day. If you need the
support of this committee, you will have it, and perhaps also that of the Legal and Constitutional Affairs Committee,
as this is the business of that committee too.
Do you not think we should take that risk? I think we should.
Ms. Montour: Yes, and that is what we are recommending.
Mr. Roger Jones, Legal Counsel, Assembly of First Nations: I do not think anyone disputes that there is a problem
and that the solution is to find the best way in which to address inequality. The paper that we cited in our submission,
entitled "Discussion Paper: Matrimonial Real Property on Reserve'', done by Cornet Consulting & Mediation Group,
does an excellent job in providing background and defining the extent of the issue.
This paper notes that the legislation does not currently prevent the assurance of equality with respect to the
treatment of property rights on-reserve, at least not to the extent that it says you cannot ensure that women also benefit
from the law and are recognized as people with property interests.
The issue insofar as First Nations governance is concerned is how to demonstrate that the solution lies in ensuring
that First Nations peoples are the ones who address the issue, rather than addressing it with more federal legislation,
which at this point we see as perhaps trying to fix a problem that the Department of Indian Affairs sees primarily as a
We understand that there is a requirement to address equality issues, and First Nations governments are the best
suited to deal with them. The best of rights and equality could be addressed by the legislation, but if you cannot
address the issue of where to adjudicate and how to enforce those matters then the problem would remain not
That is where the requirement for an intergovernmental approach needs to be explored. You would need First
Nations governments working with the federal government and, to the extent necessary, with provincial governments
to ensure that the rights are addressed and that the enforceability of such rights is properly addressed. I want to
encourage the committee to consider the capacity issues involved in this. I think that the federal government will not be
able to fix this problem but that First Nations — the people, the communities and their governments — need to
address this problem. We would encourage that by way of a substantive and comprehensive approach to this issue.
Senator Jaffer: I have read your paper with great interest and I appreciate your recommendations. I listened to the
AFN presentation and your presentation. Mr. Jones, you said that we should do something by 2004. If I have
understood correctly, the AFN said that there should be more consultation. How do we proceed with that? The
Human Rights Committee is looking at an issue considered to be almost an emergency because some women in
Canada are not treated equally. I am interested in your comments about the sentencing decisions in criminal cases. I
should like you to expand on that. How do you envision the circle working in matrimonial issues and disputes?
Ms. Paul: I will answer the first part of your question. The matter goes back to something Senator Beaudoin said
earlier about the fact that we gave equality 20 years ago and so why are we still sitting in the same position today? You
talked about legislation, but the fact of matter is: It is your legislation and it does have an impact on us. I am not
totally in agreement that the situation could be fixed by First Nations only. We would have to look at a legislative
regime of some kind, and there should be consultation with First Nations.
However, in the interim of self-government negotiations, there could be a quick fix, at least for a start. It is your
legislation and it has been in place for 20 years. If you knew that the inequality existed — perhaps you did not at the
time — then why is it taking this long to fix it? If you had given equality 20 years ago, it would not be an issue today.
There should be equality in First Nation communities, especially with respect to matrimonial property rights. All of
you agree with that and so all of you have to agree that something must be done about it quickly, in the interim.
We recommend that something be done by 2004, more than just talk, and that there be more consultations and talks
with people. It is in legislation that something be done at the committee levels.
Ms. Montour: In respect of Aboriginal sentencing circles, there is specific provision in the Criminal Code, section
718, that requires that a judge must consider the circumstances of the Aboriginal offender in making a sentence. It does
not mean that the offender would receive a lighter or heavier sentence, but the judge must take the circumstances into
Senator Jaffer: That is where my challenge lies.
Ms. Montour: I would envision, applicable to this situation, a comprehensive matrimonial law regime under the
Indian Act. It would be in place so that, when the spouses make application and go before the court, the judge could
recommend community measures where they exist. It is similar to mediation in Quebec, for example, where the parties
are required to attend. They receive six free sessions but they are not obligated to agree with the outcome of the
mediator. Spouses could go through community measures that would be based on the particular customs of individual
communities regarding marriage breakdown.
In British Columbia, each clan of the Wet'suwet'en First Nation takes care of each spouse to try to find a solution
that would incorporate the clan's customs. In court thereafter, the judge's recommendations would take the solutions
reached by the two clans into account and ensure that the children would be protected, that there would be adequate
support and compensation, and that each one's interests would be protected. The judge would consider all of that. It
could happen that one spouse was forced into the agreement. The spouse would have the right to oppose the
recommendations of the community tribunal or the community process. However, the judge would have the ultimate
decision-making power by taking into account the different customs and mechanisms in the community. In that way,
you would be respecting Aboriginal treaty rights and customs and culture in whatever regime comes into place.
Senator Joyal: Thank you for the challenging presentation. I should like to draw the attention of Ms. Paul and Ms.
Montour to page 8 of your brief, where you refer to the special provisions of the Criminal Code in respect of
Aboriginal sentencing under the Quebec Police Act. I should like to draw your attention respectfully, as we say in court
proceedings, to the fact that the Legal and Constitutional Affairs Committee amended the Youth Criminal Justice Act
two years ago to ensure that youth sentenced under the Youth Criminal Justice Act, and the majority are Aboriginal,
would be afforded the same protection — the identical protection — that we find in the Criminal Code. The
amendment passed by one vote. The House of Commons finally accepted it. I want to draw your attention to this. The
Standing Senate Committee on Legal and Constitutional Affairs was sensitive to the plight of Aboriginal youth. I want
to draw your attention to this.
That being said, when I was listening to you and listening to Ms. Smith, I was finding myself torn in two. Ms. Paul
recommended amendment to the Indian Act, with which I am tempted to agree. On the one hand, when I listened to
Ms. Smith and Mr. Jones, I found myself saying that the issue is complex because Aboriginal people have
responsibility for their own. You highlighted an important element: Aboriginals would implement the true, practical
solution, although we have tribunals and family courts for Aboriginals, which are a good idea. Nevertheless, it is a
problem that would fall under their management and responsibility.
On the other hand, I have to reconcile 35(1) and 35(4). Section 35(1) says that the Aboriginal people of Canada are
recognized within their treaty and Aboriginal rights. I am tempted to say Ms. Smith and Mr. Jones are right. This is an
On the other hand, I look at 35(4) and I say equality is, in a way, absolute between men and women. This is human
rights. It is not an administrative issue or a question relating to natural resources or fishing rights or hunting rights that
we have dealt with at our committee to protect the Aboriginal people, or the animal cruelty bill in relation to the
Criminal Code. This is a fundamental human right, so I am tempted to say we have to reconcile 35(1), which the AFN
supports very strongly, but on the other hand, we have to give effect at the same time to 35(4). Then, of course, I am led
to support your recommendation that we should amend the Indian Act, as much as we do not like the Indian Act, as
Ms. Smith has said.
This is where we are at this afternoon with your presentation. On one hand, we feel the urgency after 20 years to act,
because we are sitting here in the warmth of this room but there are people in real life who are suffering. I am tempted
to act to recommend immediately that we should amend the Indian Act. On the other hand, I have to recognize, with
Mr. Jones and Ms. Smith, that the practical solution in real terms will be in the hands of the Aboriginal people
themselves because of section 1, which gives Aboriginal people responsibility over their own people.
Where do we cut the pear, or how do we exercise our judgment in this? Is there a way to address it such way that we
could recommend that the Indian Act be amended but that the implementation of the solution be negotiated with the
representative of the Aboriginal people in a way that it is recognized as the due responsibility of the Aboriginal people?
How do we make both ends happen in a way that we pay respect to your two recommendations, which at first sight
seem to be contradictory?
Mr. Jones: Thank you for your observations. We do not disagree that this matter requires action. By no means are
we advocating that we talk about this hoping that the issue will go away. It will not. On the other hand, if advocating
legislative amendments is what is going to be the end-all and be-all, we know that the legislative process is not
guaranteed. Just because you introduce a bill does not mean it will come out as law and fix the problem.
In my earlier comments, I noted that the discussion paper that was developed on this issue — and I am quoting from
page 11 — says — and I want to read a little bit from it to advance the point I am making:
"With respect to individual
land allotments on reserve, there has been a bias in favour of males receiving certificates of possession for the family
home. The Royal Commission on Aboriginal Peoples concluded that there is no prohibition against women owning
property through a certificate of possession, but the cumulative effect of a history of legislation that has excluded
women and denied them property and inheritance rights, together with the sexist language embedded in the legislation
before the 1985 amendments, has created a perception that women are not entitled to hold a C.P.''
This suggests that there are probably remedies that do not necessarily require legislative solutions. Perhaps there are
ways in which to address policy procedures practices, both at the federal government level and at the First Nations
government level, to be able to begin to address these issues immediately without waiting for an amendment to the
Indian Act, to be able to ensure that the rights of everyone are respected and properly treated in terms of property and
a whole range of other issues.
I would think that if there is a genuine intention on the part of the federal and First Nations governments to be able
to address these issues, there seems to be a non-legislative avenue, which might only get you part of the way, and
perhaps the legislative avenue, which recognizes that First Nations governments have the jurisdiction in this area. If
working with other levels of governments can address it more expansively and more comprehensively, perhaps what we
have here is a short-term approach but also a long-term strategy, not only to address property rights but all the other
rights that First Nations women are entitled to in terms of the ones we identified here: economic rights, social and
political rights, and so forth. What we are trying to encourage this committee to do is to look at a range and a variety
of options and solutions.
I think you need to be able to hear from First Nations peoples, and obviously you will in the next few months.
However, you also, I believe, need to consult with other players who have an interest and a say in these matters.
When you look at how the Indian Act deals with First Nations peoples, especially with respect to governance, it
does not recognize that First Nations governments have the full range of institutions and capacity to address issues in
the community. You might be able to address and pass an amendment in the Indian Act that says that men and women
are equal with respect to the Indian Act. Then you will have to address the issue of how you will enforce that. Right
now, the biggest problem First Nations governments have with respect to any semblance of lawmaking power in the
Indian Act is the fact that they have no place to enforce their laws, even if they make laws. Perhaps they can go to the
provincial court system or the administration of justice in the provincial context, but provincial governments are not
ready to embrace having to deal with First Nations issues and First Nations laws.
Despite making those kinds of amendments, you will still have enforcement problems. I think you can only work
those out by dealing with the various levels of government that need to address that issue, and working together to
ensure that human rights are respected and that human rights are in fact enforced — that they are not merely spoken to
in legislation but are a reality.
Ms. Paul: I agree with much of what Mr. Jones has to say. However, I think there has to be something in the transition.
Even if you were to say that First Nations will develop their own solutions to this, there must be a process in place
whereby those First Nations can do that. I do not know if they have authority to say they will do matrimonial property
rights on-reserve. The authority to do that has to be in place. I still see something happening in the transition, because
we are here. It is 20 years. Women do not have property rights.
One other thing that came up this morning through the Indian Affairs presentation was the idea of residency.
Because First Nations can make residency bylaws, they change from place to place across the country. I know for a
fact, from reading the Aboriginal newspapers, that Six Nations is currently having a big problem with their residency
bylaw because it says only band members can live on Six Nations land. If a band member, say, to the Woodstock First
Nation married someone from Six Nations, there could be a residency problem because only band members from Six
Nations can live on Six Nations lands. That is a problem in itself. How do you deal with those bylaw problems where
they relate to residency? That is all part of the matrimonial property. If only Six Nations members can live on Six
Nations land, then, in the event of a break up, does that mean the other spouse, male or female, would not have the
right to the matrimonial home, if they even could live there?
There are all kinds of scenarios at the reserve level that need to be looked at and examined. Authorities have to be
looked at. The adjudication and who enforces this stuff is a long-term thing. However, there is nothing to say that, in
the interim, we cannot try to fix a problem that has been there for this long.
Senator Joyal: Some elements of our recommendation have been put forward through our witnesses this afternoon.
That is very important, as Mr. Jones and Ms. Smith said. In the contemplation of our recommendation, perhaps there
are transitional measures that could be very clearly spelled out as transitional measures, and there should be long-term
elements to be considered in terms of the authority and responsibility of First Nations and in terms of self-government
negotiated agreement, which will continue as a process, although we hope at a quicker rate than it is now. That should
be included, too, in the negotiation of a self-government agreement. I think that those aspects of the presentation of the
witnesses this afternoon should be on the table so that they will be available at the end of our study of
recommendations and various options. The proposal made by Ms. Paul and Mr. Jones helps us to ensure that they are
not in fundamental contradiction. That is the point that I should like to make at this time, taking into account the first
impression that I got.
The Chairman: Thank you, Senator Joyal. I wish to thank the two groups, namely, the NAWA and the AFN for
their thought-provoking presentations.
Senator LaPierre: Ms. Smith, in her document, states that we can draw on the excellent example provided by many
First Nations who are already creating law in this area. Could we have a list of the powers that are doing that, if it is
not too complicated?
Senator Beaudoin: Who are they?
The Chairman: Will you be able to provide us with that?
Mr. Jones: Yes.
The Chairman: We already have one.
Senator LaPierre: We have one?
The Chairman: Thank you.
From the Indigenous Bar Association, we have Nancy Sandy and Larry Chartrand. From the Native Women's
Association of Canada, we have Sherry Lewis and Céleste McKay.
Ms. Sherry Lewis, Native Women's Association of Canada: The Native Women's Association of Canada represents
First Nations and Metis women in Canada. The Native Women's Association of Canada, established in 1974, is
founded on the collective goal to enhance, promote and foster the social, economic, cultural and political well-being of
First Nations and Metis women with First Nation and Canadian societies.
Based on Statistics Canada's 2001 census, the total North American Indian and Metis population in Canada is
901,155. The total population of North American Indian and Metis women is 460,545, which represents 51.1 per cent
of the Aboriginal population in Canada.
This presentation is a brief summary of our position on how to resolve the current gap in legislative governance over
the division of matrimonial real property on-reserve. First Nations women are deserving of equal matrimonial
property rights, which must be protected regardless of residence.
Currently, the equality rights of First Nations women living on-reserve, guaranteed under section 15 of the
Canadian Charter of Rights and Freedoms, are violated given that First Nations women do not have equal rights to
those of First Nations women living off-reserve, or non-Aboriginal women, to whom provincial family laws apply.
This results from the constitutional division of powers in which federal laws governing the same subject matter as
provincial laws are said to have paramountcy. This means that under the Indian Act the land management system set
out in sections 20 to 29 of the act trumps the provincial matrimonial property laws applicable to the rest of Canada.
In this submission, the historical context is set out, followed by the main positions taken by NWAC in the form of
recommendations, a detailed discussion of the issues beyond the scope of this presentation. Rather, NWAC's position
is based on a review of the report commissioned by Canada, entitled "Discussion Paper: Matrimonial Real Property on
Reserve,'' by Wendy Cornet and Allison Lendor, 2002 — hereafter it will be referred to as the discussion paper —
which provides a comprehensive review of the matter.
NWAC's recommendations for redress are categorized according to the different legislative frameworks applicable
throughout Canada on reserves. These are the application of the land management regime contained within the Indian
Act, the First Nations Land Management Act and self-government agreements.
The patriarchal impacts of the Indian Act on First Nations women in Canada have relatively recently been
recognized by the federal government, as evidenced by the amendment to section (12)(1)(b) of the Indian Act in 1985
under the enactment of Bill C-31. However, the current realities of First Nations women's lives renders the gains made
in achieving equality for First Nations women rather limited. For example, First Nations women continue to suffer
residual inequities under subsections 6(1) and 6(2) of the Indian Act, the provisions governing status.
In terms of socio-economic status, native women suffer alarmingly high rates of poverty, health problems,
unemployment, violence and involvement with the criminal justice system. This poor socio-economic and legal status
leaves First Nations women at higher risk of experiencing violence and losing their children to the child welfare system.
This reality has important implications when considering the remedies that will effectively and adequately address the
current inequities regarding the protection of matrimonial real property rights on-reserve.
While this matter is important for all First Nations women living on-reserve, the effect of not having equal
matrimonial property rights is particularly severe for women living with violence. This is described in the discussion
For example, even when women on-reserve are able to obtain a restraining order under the Criminal Code, they
cannot get an order for exclusive possession to secure a home for themselves and any children that they have unless
they are the sole person named on a certificate of possession or its equivalent. The problems presented by the non-
application of certain provincial statutes and a lack of federal legislation were succinctly described by the Royal
Commission on Aboriginal Peoples. NWAC takes the position that effective remedies to address a lack of matrimonial
property rights regimes on reserves must be implemented in all communities immediately, even if this is before the
realization of self-government and even if this means legislative reform, due to the severity of its impacts on the lives of
First Nations women and their children. This impact is captured in the following account.
An Aboriginal woman committed suicide earlier this year after the authorities apprehended her children. The
woman, who had five children, was forced to leave her reserve due to a chronic housing shortage. However, she could
not find affordable housing off the reserve. Due to her financial situation, she was forced to live in a rundown boarding
house with five children. She sought assistance from the authorities to seek affordable housing for her and her children.
The authorities responded by apprehending her children. At that point, the woman, sadly, lost all hope and took her
In the 1970s, women advocates in Canada fought for provincial legislative reforms aimed at improving the economic
base of abused women through equal division of matrimonial property upon dissolution of the marriage and through
the right to exclusive possession of the matrimonial home for women under some circumstances, including abuse.
Because First Nations women living on-reserve did not have access to these provincial laws vis-à-vis real property, their
vulnerability in a context of family violence remains heightened in spite of the reforms enjoyed by all other Canadian
The importance of economic independence on First Nations women's lives can be key to fleeing abusive
relationships. The lack of available resources for woman who find themselves in abusive relationships means that
women find themselves trapped in a relationship that they might otherwise flee. This is recorded in the discussion
It is incumbent on the committee to bring justice to the lives of all First Nations women who face these devastating
barriers to equality as swiftly as possible, before more lives are lost or ruined through the despair of having such limited
access to human rights in a society that is otherwise a leader in human rights. The situation is simply unacceptable.
We have outlined our recommendations for resolving this matter and restoring equality and dignity to the lives of
First Nations women and their children living on reserves in Canada.
Under the Indian Act, the land management regime on reserves does not provide fee simple ownership to
individuals. Rather, fee simple title remains with the federal Crown that holds land for the benefit of Indians of that
particular reserve. The band council manages the distribution of the land through a process of certificate of possession,
which provides an allotment of land and which grants a right to use and occupancy reserve land to members of the
First Nations. A certificate of possession may be held jointly through a tenancy in common or a joint tenancy. Even
this system managed by the band council requires the approval of the Minister of Indian Affairs and Northern
Development. There is no mention of matrimonial property rights under this scheme.
NWAC recommends that under the Indian Act the federal government make legislative amendments to referentially
incorporate provincial legislation that protects women's rights upon marital breakdown. NWAC does not support the
position by some national Aboriginal groups that these types of reform should be voluntary. The reason for our
position is that in the communities where band councils would opt out of such a legislative scheme the women are at
the greatest need of protection.
Such reforms could be structured to provide for an alternate scheme upon self-government. The First Nations Land
Management Act provides for an alternative land management scheme in which First Nations and band councils
manage their reserve lands without ministerial interference.
As a result of lobbying by First Nations women's groups, a provision was added to the First Nations Land
Management Act to require that the First Nations code specifically address rules and procedures on matrimonial real
property based on consultation with its members. The adequacy of this solution has been called into question by
NWAC, given that it does not guarantee the equality rights of First Nations women governed under this act.
The First Nations Land Management Act should be amended to require that band codes protect the matrimonial
property rights of First Nations individuals to the same extent as individuals governed by provincial matrimonial
property laws. Self-determination is a goal of Aboriginal peoples in Canada that NWAC supports. However, it does
not support self-government at the expense of the rights of First Nations women.
Since the National Indian Brotherhood's strong political reaction to the white paper of 1969, there has been a great
deal of debate around the legitimacy of protecting individual rights at the expense of collective rights in Aboriginal
communities. However, it has since been argued by scholars such as Dr. Sharon McIvor that Aboriginal collective
rights under section 35 of the Constitution and individual rights protected by the Charter of Rights and Freedoms are
not mutually exclusive but, rather, mutually enhancing. There is an argument that section 25 of the charter, which
protects constitutional rights such as section 35 rights from the application of the charter, renders individual rights
subordinate to collective rights of First Nations. However, it has been argued that section 25 does not expand section
35 rights but, rather, serves as an interpretive prism through which Charter rights are to be applied. It is not likely to
take away gender equality rights from Aboriginal women who are also protected under section 35(4).
Furthermore, it is important to note the practical reality of the debate. To date, self-government agreements
between Canada and First Nations have incorporated the applicability of the Charter. Furthermore, in its gender
equality analysis policy, the Department of Indian Affairs and Northern Development commits itself to integration of
gender equality analysis in all of DIAND's work, including consultations, negotiations, including but not limited to
self-government and land claims treaty entitlement and devolution.
NWAC recommends that self-government agreements continue to be negotiated on the understanding that charter
rights, such as the equality provision, continue to apply to First Nations under self-government regimes. This
requirement must lead to the formal inclusion of matrimonial property rights in the development of self-government
Mr. Larry Chartrand, Indigenous Bar Association: Honourable senators, thank you for inviting us to participate in
these proceedings. It is hoped that we will be able to offer some ideas for resolving what is a complex issue.
I shall say a few words by way of introduction in terms of our organization and then my colleague, Nancy Sandy,
will provide the substantive report.
The Indigenous Bar Association is a professional association of Indian, Inuit and Metis lawyers, judges, legal
consultants, law students — and I probably should add law professors, as well.
Our mandate includes objectives for advocacy in terms of advancing legal and social justice in Canada for
Aboriginal peoples. We do that in the context of trying to ensure, to our utmost ability, respect for our spiritual basis
and our own indigenous laws, customs and traditions. That is pretty well our foremost objective, to achieve legal
reform that will provide greater justice for Aboriginal peoples. We do that through a number of specific mechanisms,
such as public awareness, making presentations before committees, holding conferences, et cetera.
As we are a professional organization with members in various capacities, from legal counsel for government,
private practitioners, judges, policy makers, and so forth, we do not like to take political positions per se; rather, we
focus on matters of law and process. Most of our recommendations try to address some of the legal issues as best as
possible and offer some procedural options.
Ms. Nancy Sandy, Indigenous Bar Association: Honourable senators, I wish to emphasize the importance of our
culture, language and history in any type of legislative reform with respect to indigenous peoples in this country. I also
wish to lend some human element to this formal process here. It is somewhat intimidating to be presenting at such a
I should like to apologize that our paper is not broken down with page numbers, a table of contents or formal cover
page. We put it together fairly quickly. We would like to take the opportunity after this presentation, if necessary, to
add any other information that you might require from the IBA. Our paper begins with an introduction. We talk about
legal issues, impacts and potential reforms and especially what the IBA does not foresee or prefer to happen during
reform. We then end with recommendations.
In the interests of time, I prefer not to go through all the information that you heard this morning. Those pieces of
information that you heard had to do with jurisdictional issues, the application of jurisdictional law on reserve lands
and the socio-economic issues suffered by indigenous families and communities. Examples of those are lack of housing,
education, employment and include family violence, different forms of land tenure and the status of the people
involved. I will not bother you with that at this point because you have heard that for most of the day.
I will begin our paper at page 6, under potential for reform. The passage begins by pointing to the potential for
reform with respect to on-reserve matrimonial real property on the breakdown of a marriage or common-law
relationship. This common-law relationship may apply to a male or female, or it may apply to a same-sex relationship.
Confusing jurisdictional issues in family law for indigenous peoples lends itself to a maze of unending pathways to
solutions, which arrive at yet another series of problems created by the solutions. Simply amending the Indian Act to
allow for the application of provincial-like regimes would not resolve the oppressive nature of an alien form of self-
government imposed on indigenous lives. This may be a necessary short-term option in limited circumstances. A long-
term solution would, however, necessarily involve the recognition of jurisdictional space for indigenous governments in
the area of matrimonial property on-reserve based on the traditions and customs of the indigenous society in question.
Indigenous peoples have a strong desire to control their own destiny and revive their culture, language and
traditional governments, and this should be recognized as a source of wealth. Closely connected with this idea is the
desire of indigenous nations to govern themselves without the oppressive hand of non-indigenous values and principles
that has been imposed on us since the early 19th century.
In family law, the best interests of the child are paramount, yet it is a principle that is always in danger. A cultural
value of indigenous peoples across this country is the right of the child to live on the land in which he or she is born.
This connection to the land is recognized in ceremonial acts of the Secwepemc, who bury the umbilical cord at the foot
of a tall, straight and strong tree with the hope that the child will grow up to be tall, straight and strong like the tree
and will always come back to its place of birth.
In the cacophony of legislation and non-existent policy related to the division of matrimonial property, the
indigenous children are left out of the equation. This is because the division of matrimonial property in Canadian law
is based on the fair and equitable disposition of the property between the spouses rather than maintaining cultural
values like connection to the land of birth.
Some consideration should be given to the recognition that indigenous children, as much as their parents, have a
right to a fair share in the family property. Upon marriage breakdown, the children could be granted a share of the
matrimonial property and such interest could then be maintained in the form of a legal trust until the children are
legally able to access that trust. In this way, the children would have their long-term interests protected and cultural
values may be incorporated as part of the solution. This solution is worth exploring.
Indigenous communities are beginning to exercise greater powers of self-government. In some cases, this will result
in the incorporation of indigenous values and principles with respect to real and matrimonial property in land codes
developed pursuant to the First Nations Land Management Act, or through self-government agreements and
corresponding legislation, or through modern day treaties. However, these latter solutions are long term and will not
resolve the inequalities confronting indigenous families on a daily basis.
Some communities are developing restorative-justice models to resolve internal conflicts through systems based on
traditional values. These processes are beginning to work well in the resolution of disputes, including disputes related
to matrimonial property, but they need to be supported. Governments can support indigenous people in their
decolonization processes by supporting restorative-justice projects with core funding. There are many projects in
Canada where the success rate is phenomenal because the people are resolving their problems from within their
communities rather than having solutions imposed from the outside.
It is important to understand that the creation of an alternative dispute resolution process or model to provide
culturally appropriate family dispute resolution services must be based on the culture of the specific community.
Initiatives based on models of other indigenous peoples' cultures and values are not normally transportable from one
community to another. Even more so, models with non-indigenous values and principles are not appropriate.
Culturally appropriate services often require research into the traditional laws and customs, the traditional dispute
resolution mechanisms and sanctions, and the development and implementation of the service. Community
consultations with the intended clients provide the mandate for the service, but the guidelines on how the services are
delivered will take time and resources. Training individuals in dispute resolution, quality assurance and evaluation,
management and administration, power imbalances and family violence, and facilitation and negotiation skills requires
resources not always accessible from band education programs or other band program funding. Band or tribal council
restorative-justice initiatives derive their funding from a variety of funding agencies and it is a constant struggle to
maintain this service. The aforementioned projects ought to inspire financial support for developing capacity of
indigenous communities to take on the responsibility of resolving disputes in institutions built by and for indigenous
people based on the foundations of traditional laws and customs in their communities and that include the protection
against discrimination currently experienced by indigenous women and children.
Indigenous communities have the capacity and the desire to resolve disputes within their communities, including
family disputes related to the division of assets. With proper resources and training, there are some potential solutions
readily available. For example, formal community-based family adjudicators appointed by chief and council and
supported by elders and/or community approval could be instituted immediately to deal with issues such as who gets
possession of the home upon family breakdown. Family adjudicators could be empowered to make quasi-judicial
decisions that the band council would be compelled to enforce.
Ideally, the family adjudicators could be required to achieve consent between the parties, and these consent
agreements would be registered with the band council. This would certainly create greater capacity over the long term
to deal with broader family issues such as custody, access and child maintenance.
While building capacity, there would result the inevitable awareness and public legal education for indigenous
peoples about their family law rights and responsibility and revive methods of resolving disputes utilizing indigenous
laws, customs, values and principles.
Making changes to existing federal and provincial legislation is not encouraged where the inequalities are
perpetuated. The IBA does not support the creation of custom law that might be unfair or discriminatory in its
implementation. We would not want legislation being enacted whereby collective rights are eroded at the expense of
individual rights or vice versa, and we would not support initiatives implemented to continue internal colonialism. We
clearly see the federal government's role as supportive in nature rather than dictatorial in addressing the continued
violation of human rights. Also, we do not want to deliver services that are curtailed by funding accessible only to on-
We do want to ensure that any reform undertaken is done in a manner consistent with the consultation requirements
set out by the court. It is important to note that in the past attempts at reform related to the Indian Act have not
always been controversial, particularly the reform suggested in the Penner report, the Aboriginal justice inquiry of
Manitoba and the Royal Commission on Aboriginal Peoples. The substance of those reports was accepted by
indigenous peoples because the process of developing that substance was fair, open, accountable and democratic, and
included the full participation of indigenous people in a way that was respectful and dignified. Given the controversy of
Bill C-7, any intended reforms in the form of legislation can only take place with consultation based on the principles
of meaningful consultation.
In Delgamuukw v. British Columbia, the Supreme Court of Canada stated:
Of course, even in these rare cases when the minimum acceptable standard is consultation, this consultation
must be in good faith, and with the intention of substantially addressing the concerns of the aboriginal peoples
whose lands are at issue. In most cases, it will be significantly deeper than mere consultation. Some cases may
even require full consent of an aboriginal nation, particularly when provinces enact hunting and fishing
regulations in relation to Aboriginal lands
Whenever there is consultation intended to reform legislation and policies of the federal government that are linked
to Aboriginal and treaty rights, including the inherent right to self-government, there is a risk that rights will be
infringed. In these matters, the Crown must be proceed with caution. The Crown's honour is at issue. The Indian Act
and its regulations and companion legislation will always be subject to close scrutiny by the courts and may potentially
infringe the inherent right to self-government. There are compelling arguments that the certificate-of-possession system
itself is a violation of the band's interest in reserve lands as a protected Aboriginal right. This conclusion is supported
by a synthesis of Delgamuukw and the recent Osoyoos case. Bands arguably have an inherent Aboriginal right to their
reserve lands, which includes the right to control the uses to which that land is put.
For this reason, any legislative changes, whether large or small, no matter how well intended they might be, must be
accompanied by a detailed and meaningful consultation process that is genuinely intended to address the substantive
problems in a manner preferred by indigenous peoples. This can only occur by listening to indigenous individuals and
leadership and by being prepared to undertake the changes that are being suggested by them. There are no shortcuts to
change. The Indian Act has imposed over one century of colonialism and it cannot be fixed quickly and without
In closing, we wish to reiterate that the IBA firmly believes a fair distribution of on-reserve matrimonial property on
the dissolution of a marital or common-law relationships must be based on the culture and traditions of indigenous
people, the right of indigenous people to develop solutions from within their communities and the inherent right of
indigenous people to self-determination and self-government. This will be a difficult task to accomplish but it can be
The following recommendations must be understood in the context of a fundamental shift in band land-allotment
policy and legislation. First, in furtherance of the recognition of indigenous self-government and the rights of bands to
control the use and allocation of their lands, mechanisms need to be established to provide bands with a local custom
land register for interests in land currently allocated according to custom and filed with a central agency; and to
facilitate over the long term the conversion of lands from certificate of possessions to registered custom allotments.
Second, where land interests are based on custom allotments, resolutions of division of property issues and the right
to the matrimonial home are to be referred to family adjudicators that are appointed by band councils supported by
elders and/or community approval.
Third, family adjudicators are to be trained in equality rights and customary laws of the community, which may be
recognize independent rights of the children of such marriages.
Fourth, as a short-term solution, where the land interest is based on a certificate of possession, an amendment to the
Indian Act is needed to allow for a specifically tailored provision that would give the right to the spouse of a
matrimonial home exclusive occupation, even where the spouse is not named on a certificate of possession under the
Indian Act, subject to a band's right to opt into such legislative changes.
Fifth, intensive equality rights training needs to be provided within communities.
Sixth, the Government of Canada needs to provide funding to Aboriginal women's organizations, to enable them to
participate fully in all aspects of nation building, including the lobbying of changes to ensure fairness in the right to the
At the beginning of my presentation, I wanted to mention Aboriginal women's leadership. I had the wonderful
experience of being chief of my community for six years. Some of this presentation is based on my personal experience
as a leader in my community, our community's struggle to revive customs, traditions and culture, and our constant
struggle for the inherent right to self-government. Because I am from British Columbia, we are in a treaty-making
process. As part of that process, our endeavour is to ensure that the rights of our people are protected and that our
collective rights are protected.
Thank you for giving us this opportunity to present before the committee. We wish you well in your undertakings.
We will share the responsibility in answering your questions.
Senator Beaudoin: You talked about an adjudicator. Does your band have rules and regulations under the authority
of a plan or under the authority of the law?
Ms. Sandy: We are recommending that family adjudicators be set up in our communities. The other part of the
question that you did not ask, which I am answering, has to do with alternative dispute-resolution services. There is
information with respect to those restorative-justice projects where communities have endeavoured to resolve such
disputes in family law.
Senator Beaudoin: Do your rules sustain equality of men and women in the adjudication of the problems that the
community may encounter? Does your community respect this principle?
Ms. Sandy: I am having difficulty with your question because we are recommending, as a solution, the appointment
of a family adjudicator by the band council with the support of elders and/or the community. It would be a short-term
solution that communities could begin to exercise immediately. I would anticipate that the equal rights of men, women
and children would be protected in such a process.
Senator Beaudoin: It is transitory, in other words.
Ms. Sandy: Yes.
Senator Beaudoin: It is aimed at the temporary, transient, in that you are looking for something else as a permanent
Mr. Chartrand: The Indigenous Bar Association is similar to the Canadian Bar Association in that it is a
professional organization where men and women are equally represented and have equal rights. I think your question
could be paraphrased as follows: Do traditional Aboriginal societies have a principle of equality between men and
women? The response to that question would vary with each indigenous nation across North America. In my historical
research, I have learned that some communities are very much egalitarian in that respect but not necessarily all of
them. Some communities were male dominated and the rights of women were less so, traditionally.
However, all societies in the world interact; they are not islands unto themselves. Inherent values in one society, such
as equality, can influence other societies, such as those of indigenous peoples. Society's values change over time and
indigenous people's values may change over time and may or may not respect those rights as a result.
Senator Beaudoin: I am a member of the Barreau du Québec and the Canadian Bar Association — which has
changed considerably since the Charter of Rights and Freedoms. When we were at the faculty of law, there were 100
men and 10 women. Today, the majority of the faculty are women — about 60 per cent. The bar associations are the
same. We are currently changing the appointments to the courts in that the bar is now involved. It has changed
What is happening in your association?
Mr. Chartrand: The Indigenous Bar Association does not have statistics on representation by men and women. At
the law school where I am a professor, 60 per cent of the classes were women during the last five years.
Senator Beaudoin: What about the judges?
Mr. Chartrand: I think that only a handful of Aboriginal judges — perhaps two out of five — are women.
Senator Beaudoin: The other day I attended a meeting where there was an Aboriginal judge. Things are is changing,
Senator Joyal: I would like to thank Ms. Lewis and Ms. Sandy for their excellent brief. My first question will be in
relation to Mr. Chartrand's last answer because I think he is touching on an important point. In your answer to
Senator Beaudoin, you mentioned that the attitude generally vis-à-vis equality of men and women may vary from one
band to the other, or from one Aboriginal nation to another. We had a presentation earlier this afternoon by the
National Aboriginal Women's Association, which was referring to the Iroquois matriarchal clan system that had
jurisdiction over property and civil matters. Of course, that may vary from one band to the other.
One problem we have in terms of non-Aboriginal Canadians is that we want to respect the cultural identity of the
various Aboriginal people. However, in relation to equality of men and women — considering that in the Constitution
of Canada, in relation to Aboriginal and treaty rights, it is guaranteed equally to Aboriginal men and women — am I
right in maintaining that this supersedes the differences that we might historically have seen between the various bands
in relation to the status of women within their own ranks, within the Aboriginal and treaty rights concept of the
It is a very important point that we will have to deal with in our recommendations. We are not discussing other
aspects of Aboriginal reality, but we are discussing something that is protected by the Constitution. To put it in clear
terms, if in a Aboriginal band women are not put on a par with men in relation to their fundamental Aboriginal and
treaty rights, we are justified to take an initiative.
Mr. Chartrand: That is certainly one perspective, and I think a fairly compelling one. You have to think about how
section 35(4) came to be; it was a process of first ministers and Aboriginal representation from the various leaders
representing Aboriginal communities in Canada, and that provision was agreed upon by that leadership. That sends a
strong message that indigenous people in Canada want to respect the rights of equality between men and women and
that they are prepared to do so by agreeing to that provision being incorporated in the Constitution.
Aboriginal peoples have been influenced over time by the changes in values in human rights just like other countries
have, and that is fairly consistent with that evolution. It may be up for debate in specific circumstances — when it will
trump, say, and how its relationship is with section 25 — and that still is uncertain and has to be worked out.
Thinking of it from that perspective, there is a constitutional mandate for Aboriginal and treaty rights to be enjoyed
equally between men and women, and that would include the rights of Aboriginal communities to the interest in their
Senator Joyal: There was a reference made to a study by a professor earlier on — I think the reference was by the
Native Women's Association; it was to Professor McIvor. We might want to investigate that this, or to have her later
on as a witness. It is an important element to reconcile the collective and individual rights of Aboriginal people. This
issue is at the core of it; it is an issue that has no parallel in other sections of Part II of the Constitution, which deals
with native and Aboriginal and treaty rights.
The other question I wish to put to Ms. Lewis probably would have been put by our colleague Senator Chalifoux.
The Native Women's Association of Canada represents First Nations and Metis women in Canada. In reading and
listening to your brief, it does not seem that you focus on the issue of Metis women. Can you address this for us? In
other words, how is the reality as lived, in your opinion, by Metis women covered in your recommendations that we
have from page 5 to page 6? It is a very good brief, by the way, but I am keen on hearing from you on the status of
Ms. Celeste McKay, Native Women's Association of Canada: Perhaps I can answer that. The reason the brief focuses
on First Nations women is because, under this particular issue, Metis women tend to live in geographical locations
where provincial laws do apply to their lives. Therefore, this issue is not particularly relevant to Metis women.
Senator Joyal: Yes, in a way — and I do not want to offer a different opinion than you — but as you know, the
territorial rights of the Metis people are under dispute at the Supreme Court of Canada presently. There is a famous
case, as you know, coming from Ontario. It might be an issue that, at a point in time, will be raised, because they will
have recognized territorial rights under section 35 that they have been denied for centuries. We all know Manitoba — it
started with that province. Hence, for the time being, do you have any suggestions to make in terms of the upcoming
negotiations on the territorial rights of the Metis people?
Ms. McKay: I think our suggestion would be the same as in this forum, which is that when you look at the interplay
of section 25, section 35(4) and section 15, you have to come to the conclusion that equality rights must be protected
within the exercise of collective rights.
Senator Joyal: You would maintain the same interpretation of rights that you and Mr. Chartrand have identified for
the Indian with full status.
Ms. McKay: That is right. Further to that, one point that the Native Women's Association of Canada wants to
stress is that the reason these rights are required is because of the influences of Canadian society on First Nations
people, through the colonization process and the imposition of patriarchal values that have, in some circumstances,
come to be adopted by First Nations. That is why we insist on the Charter being present, or a parallel system.
Senator Joyal: That is what we referred to this morning with Ms. Ginnish from the Department of Indian and
Northern Affairs. In a way, the Indian Act implemented systemic discrimination against women, imported from the
concept of the 19th century, which was a different society than the one we are trying to build now, especially with the
Charter. There is a clear, fixed objective in the Constitution, protected by the court, for Aboriginal people and for non-
Aboriginal people. This is an important element in relation to understanding the points that were made by Ms. Sandy
and Mr. Chartrand this afternoon on the way we have to reconcile the collective rights of Aboriginal people to self-
government to an initiative that remains in the hands of the Aboriginal people — the adjudication process, the
Aboriginal circle, as was given to us earlier this afternoon as an approach.
In terms of human rights and fundamental equality being constitutionally protected, that has to be taken as the
starting point. We are not hurting the Aboriginal identity when we approach the issue of those human rights in
conjunction with the collective rights of the Aboriginal people to be the ones responsible to maintain social cohesion on
reserve and on territory in which they are granted sole title, either through negotiations or ancestral rights.
Ms. Lewis: It is important as well to note that the Native Women's Association of Canada just began this work of
looking at this complex issue. As we further delve into it and talk to our constituency, we will see other
recommendations come forward. As we begin to look at all options that will be presented, I am sure we will be looking
at Metis issues as well as working on Inuit issues regarding this. We hope to expand our area of focus to include all
aspects so that we can provide you with more information on the specific details or nuances of what this could look
Senator Jaffer: First, I wish to thank you both. It has been very useful. I know the recommendations are something
we will be looking at.
This afternoon, listening to the speakers before you, especially Ms. Lewis, from where I sit, I want to be respectful of
what AFN says. Yet, I have an urgency that all women should be treated equally. What do you think we should be
doing with the consultation process? What would you like to see us do?
Ms. Lewis: I come from Six Nations, a matrilineal society, and the manner in which that is used in decision making
is very comfortable for me. It is my desire, with our association, to look at what the impacts of any decision will be
from all perspectives, including men, women and children
Having had a large influence in my family from women, and having the strongest voice — as most of you will be
able to tell, sometimes I do not even need a microphone for you to be able to hear me — we are very comfortable with
showing others that a society where we base decisions on the value and strength of our women can lead to a place
where egalitarian rules can work well for all involved. I know that many First Nations are not accustomed to looking
at it from that perspective, and we certainly want the opportunity to show them the value of believing in the strength of
Senator Jaffer: I am struggling with what our earlier speaker said about the sentencing circle for resolving issues.
You have talked about family adjudicators. If you think I am not framing this properly, please tell me right away. You
are talking about family adjudicators because you feel they will be more sensitive to issues, unlike judges who do not
have the training. Have I got that correct? Is that why you are suggesting that?
Ms. Sandy: Correct. It would be people resolving their conflicts within their communities as opposed to an external
resolution of problems within that community.
Senator Jaffer: I am struggling with the suggestion that has been made on mediation. In my other life, I have done
lots of mediation, and I have great concerns about mediation, especially with family issues. I want, more than you, my
colleagues to hear this, namely, that it is a real challenge, especially around familiar family issues where there is a real
power imbalance when we talk about the circles. You may not have an answer today, but if you think more about the
earlier presentation on circles, especially with the two of you being lawyers. My challenge is when we talk about taking
the sentencing model and then talking about the family issues and the power imbalance that exists. I have some real
reservations about that.
Ms. Sandy: We are very cognizant of the concerns about power imbalances within communities, especially relating
to family violence. Speaking from experience in attempting to develop such a dispute-resolution service, it is a concern
that community members themselves have expressed. They also desire that kind of service to be delivered by themselves
— mind you, they say without political influence of a band council, because they want the service to be provided by the
people for the people, without the band council being involved. As Ms. Lewis said earlier about our communities
taking on some of the non-native forms of self-government and our community standards changing over time, people
are concerned. If there is a male-dominated council, then if they have any influence over such decision making the
problem will continue. Inequalities will be perpetuated, and they will just continue and continue. However, we are
cognizant that such services have to be developed and provided in a means that protects against that kind of issue.
Senator Jaffer: My final question is on the definition of children. At length, we talked about the interests of children.
I wish I had brought the case, but over the weekend I read a case where the judge held that where a person had only
nephews and nieces the land would go back to the band, not to the nephews and nieces. You are probably aware of
that case. That really bothers me. From my limited knowledge of Aboriginal issues or how children are defined in the
Aboriginal culture — they are extended family. I would like you to comment on how you define children. It is not just
immediate children. Can you comment on that?
Ms. Sandy: My personal experience with children is that we have custom adopted in our community for as long as I
can remember. A child can be Larry's child, but if for some reason he is unable to take care of that child, I take over
that child and he becomes my child, but we still recognize that he is the birth father. There is no severance of that
My sister had a daughter and she was not able to take care of that young girl, so my mother took over. In the
process, her granddaughter became her daughter. When my mother was unable to take care of my niece, I took over
her care. This is really complex. I ended up being my niece's mother rather than her aunt. My niece often says that she
was very rich because she has had three fathers and three mothers. The concept is that the child can extend to the whole
community and the community is responsible for raising that child, in a sense. That is a value that is still strongly
retained in our communities and I am sure in other communities across this country.
We also, in our community, adopted non-native people. They are recognized in our community as band members,
although they do not have the status as an Indian under the Indian Act, but they are recognized by the community as
an Aboriginal person. In our community, we also have adopted children from other indigenous nations, and they have
been recognized as members of our communities and children of our communities.
Senator LaPierre: I have two questions, one for Ms. Lewis and one from Ms. Sandy.
Ms. Lewis, I am interested in our objective. We have blamed the Indian Act and the colonialism of us poor white
men for this terrible tragedy, but I was wondering how much you think that the male-oriented band council also has a
responsibility with regard to the tremendous abuse of the human rights of women. If the question is not proper, I will
withdraw it. However, I will have to find the answer somewhere else.
Ms. Lewis: I am certainly willing to comment on that question. It is no surprise to anyone that after 20 years very
little movement has occurred where band councils did have the opportunity to make some change for their individual
band members. It is unfortunate that we are going through this process to enact change when clearly band councils
could have taken on the issue a very long time ago — because it is my understanding that as women we have always
spoken of the inequities to our band councils.
In my home territory, where we have a hereditary council and an elected council, we may be going to two different
groups to talk about the inequities, but they have been very clear and very prevalent in the communities for a long
time. I agree that band councils need to take their share of the responsibility for the lack of action and the terrible state
that their women and children are in as a result of those poor decisions or lack of decisions. I agree 100 per cent with
Senator LaPierre: Thank you.
Ms. Sandy, I accept your statements about self-government. I am a little bit concerned about not accepting values
from outside the inner group, but that is another matter.
However, are you in agreement that the self-government of native peoples is subject to the Canadian Constitution
and to the Charter of Rights and Freedoms totally and completely, and that if the Charter of Rights and Freedoms and
the Constitution of Canada stand here, your self-government flows from it? The Charter of Rights and Freedoms is a
sacred instrument, and you do not have the right to deviate from it at all.
Ms. Sandy: The IBA has been on record as stating that the Charter of Rights and Freedoms is applicable in our
desire for self-government.
Senator LaPierre: It is a cornerstone. Let us say a provision of the Charter of Rights and Freedoms affected the
question of the equality of men and women; Mr. Chartrand has suggested that it has existed and it continues to exist, if
I understood him correctly. The Charter of Rights and Freedoms will make this impossible and, therefore, the customs
of the tribe, the nation, will be seriously affected by the submission of traditional values and methodologies to the
Charter of Rights and Freedoms. Is that situation acceptable to you?
Furthermore, the principles of mobility and transportability are also part and parcel of the Charter and need to
apply as well to Aboriginal people as well as to anyone else.
Ms. Sandy: They are part and parcel of the Charter, but you have to also recognize that under section 35 of the
Constitution we have a right to our culture, our language and our history as part of self-government. If that self-
government recognizes collective interests, then they also must be protected, as well as individual interests.
Senator LaPierre: Yes. Senator Joyal has spoken about that.
Mr. Chartrand: If I could just add to that, in terms of the analysis that I looked at with respect to application of the
Charter to Aboriginal self-governments, there are two debates on that issue. Right now, the more compelling analysis
is from the perspective that the Charter does not apply.
Senator LaPierre: Will you say that again?
Mr. Chartrand: The Charter does not apply.
Senator LaPierre: To whom does the Charter not apply?
Mr. Chartrand: It does not apply to Aboriginal governments based on an inherent right of self-government.
Senator LaPierre: It does not apply.
Mr. Chartrand: The Charter of Rights and Freedoms does not apply. The Charter specifically says that it applies to
federal and provincial governments. It does not say it applies to Aboriginal governments. Analysis has been written
and some key legal scholars have made several compelling arguments to suggest that the Charter would not apply.
Certainly, in most self-government negotiations, the compromise is that the people are prepared to accept the Charter
as part of the government, but if an Aboriginal group wanted to assert an inherent right of self-government tomorrow
and got that recognized in the courts, whether the Charter applies or not would still be up in the air.
Senator LaPierre: Could women still continue to be discriminated against in the name of tradition?
Mr. Chartrand: No, because section 35(4) prevents that. The Aboriginal and treaty rights are enjoyed equally.
Senator Beaudoin: Subsection (4) is clear.
Senator Joyal: That is the very specific distinction that exists in the Constitution of Canada. Section 35, as I said this
morning, is not part of the Charter.
Senator LaPierre: Yes, I understand.
Senator Joyal: It is Part II of the Constitution Act, 1982. Part I is the Charter and Part II is the rights of the
Aboriginal peoples of Canada. It is within that Part II that the rights of male and female persons are recognized on an
equal basis insofar as Aboriginal and treaty rights are concerned. There is a specific mention in the protected section of
the Constitution dealing with Aboriginal people that there is a principle of equality between male and female persons.
On this point there is no dispute.
Senator LaPierre: Do we conclude from that that equality must exist in spite of whatever traditions there might be?
Senator Joyal: Yes. That is where there is a conflict, as I say, with, theoretically, the collective rights of the
Aboriginal people to self-government, but in relation to the equality of men and women, it is fully recognized. That
was done — and I insist on this — in 1983, on the basis of a consensus between the representatives of the AFN, the
Metis people, the Inuit, the Government of Canada and the provinces. In other words, there is no dispute on this.
Senator LaPierre: Okay.
Senator Beaudoin: Even if we try, there is no dispute.
Senator LaPierre: Thank you.
Senator Chaput: My question has been answered in a sense, as it has been touched on by many senators. However, I
wish to share what I had in mind. It has to do with the equality of men and women.
Is it correct to say that equality between men and women is a recognized value? Eventually, equality of men and
women will come, although there are still attitudes that need to be changed and education that needs to be done. This is
one of the objectives that you have to reach with your peoples. What struck me in one of the presentations was that
you talked about the rights of children, with which I fully agree, but those children are little boys and little girls. That is
your society of tomorrow. If you do not work on changing attitudes and talking about equality, those boys will grow
up to think otherwise and the girls will grow up to have more problems than they should have. It is all tied together.
That is what I wanted to share with you.
Ms. McKay: I wanted to add to your point, namely, that the best interests of the child are taken into account when
equality rights are recognized in Aboriginal communities, especially when you look at the high rates of Aboriginal
female single parents who are heading these households.
If their children want access to the land through their mothers, they will have that access if the matrimonial property
regimes are developed in a way that respects women's rights.
Ms. Sandy: It was mentioned in the Royal Commission on Aboriginal Peoples in various parts of the discussion on
family law that gender principles, inequality between male males and females, in some indigenous societies is not quite
but almost a foreign concept because the core of being a human being is that you have human rights. It does not matter
whether you are male or female, you are a human being with rights. I find discussions like this very difficult when it is
delineating the weight of who has more rights, women or men, or whether you have equal rights. You are a human
being and you have equal rights that must be respected.
Senator Chaput: I fully agree with what you say, but when we look at what has been happening and what is still
going on, that has not been the case.
Ms. Sandy: I am referring to both indigenous and non-indigenous individuals.
Senator Chaput: Absolutely, all across the world. We cannot just ignore it.
Senator Ferreti Barth: In your recommendations, in paragraph (b) of your first point, you talk about long-term
facility and converting a possession certificate into another type of certificate, referred to as the
allotment.'' Why are you making such a recommendation? What is the difference between the certificate of possession
and the other certificates that you are recommending? Does this certificate have some advantage or some weight
attached to it? Why are you recommending this conversion?
Mr. Chartrand: There are bands out there that do not comply with the Indian Act, because they have decided,
whether it is consciously or just as a matter of tradition and history, that the lands that individuals are using on the
reserve are allocated according to historical custom and that there is no attempt or even suggestion for individuals to
apply for certificates of possession through the band council and then, on approval, by the minister. There are bands
that have that type of system. This is a system that is more consistent with self-government. In some respects, it is
outside of the Indian Act already. It is decision making in terms of allocation of land use based on the band council
and their customs.
To be consistent with the right to self-government, to convert an imposed system under the Indian Act of certificates
of possession to traditional custom allotments would be more consistent with the right of self-government, because
then the bands will have control over how the lands will be used and will not require ministerial approval. That is the
rationale behind that.
At the same time, you must read the other important recommendations of educating and training in terms of human
rights and what traditional law and the community was all about before the imposition of foreign patriarchal
principles. There is that training that must go with the conversion process, which would be more consistent with self-
Senator Ferretti Barth: They give more of a guarantee to the people who are so registered.
The certificate of possession provides a type of guarantee with respect to possession of the land, according to the
department. The purpose of the proposed conversion is to change the terminology in this legislative part as it pertains
to possession of land.
This certificate of possession has been spoken about in the presentations today on many occasions. Nevertheless, no
one has suggested that the terminology be changed to enhance the assurance associated with this certificate. I would
like to know the exact reason underlying these recommendations.
Mr. Chartrand: The point is just that it is a reform that would allow bands to have control of the way they use their
lands without the approval of the minister or the federal government. It is consistent with inherent right of self-
government and consistent with some of the recent case law on Aboriginal rights for bands to have that authority.
That is why the recommendation is being made to slowly dismantle the Indian Act certificate of possession process
and replace it with the custom process.
The Chairman: Thank you very much for your presentations.
I need Senator Beaudoin to be present for some motions. I would ask that the cameras cease rolling and that we go
immediately to our business.
Senator Beaudoin, have you read the motion?
Senator Beaudoin: Yes, I am in agreement with the motion.
Senator LaPierre: I move the motion.
The Chairman: Is it agreed, honourable senators, to adopt the motion as indicated?
Hon. Senators: Agreed.
The Chairman: The budget is our last item.
Senator LaPierre: I move that we accept the budget.
The Chairman: Is it agreed, honourable senators, to adopt the motion in regard to our budget?
Hon. Senators: Agreed.
The Chairman: Thank you, senators.
The committee adjourned.